Theory of state and law: textbook 9786010411371

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КАZAKH UNIVERSITY OF INTERNATIONAL RELATIONS AND WORLD LANGUAGES NAMED AFTER ABILAY KHAN

Z. K. Ayupova

THEORY OF STATE AND LAW Textbook

Almaty «Kazakh University» 2015

UDC 340.1 (075.8) LBC 67.0 я 73 A 98 Recommended for the publishing by the studying methodical section on the group of the specialties “Law” KazGYU January 15, 2014 on the specialties 6В030100-jurisprudence, 6В030200-international law, protocol № 9 Reviewers: doctor of law, professor A.E. Zhatkanbayeva PhD, Associate Professor N.S. Tuyakbaeva PhD, Associate Professor E.T. Omirzhanov PhD, Associate Professor S.T. Shaikenova

A 98

Ayupova Z.K. Theory of state and law: textbook. – Almaty: Kazakh University, 2015. – 192 pages. ISBN 978-601-04-1137-1 This textbook is the methodical complex on the Theory of state and law consists from the lectures, tests, glossary, the questions for self-preparation and recommended literature. It is devoted to the students of the universities, colleagues and also bachelors, masters, teachers, scholars and readers. UDC 340.1 (075.8) LBC 67.0 я 73

ISBN 978-601-04-1137-1

© Ayupova Z.K., 2015 © KazNU after аl-Farabi, 2015

Contents

Preface....................................................................................................4 Part I Chapter 1. Subject and methods of the Theory of state and law.....................................................6 Chapter 2. Origin of the state............................................................19 Chapter 3. Origin of the law.............................................................27 Chapter 4. Summary of the state.......................................................33 Chapter 5. Form (unit) of the state....................................................38 Chapter 6. Functions of the state.......................................................44 Chapter 7. Mechanism of the state....................................................49 Chapter 8. Republic of Kazakhstan-independent sovereign state.................................................................55 Chapter 9. Law in the regulation of the public relations...................59 Chapter 10. Law, morality, customs, and other social norms...............................................................................69 Chapter 11. Concept, nature and scope of law....................................75 Chapter 12. Types of law....................................................................78 Chapter 13. Forms (sources) of the law..............................................83 Chapter 14. Rule of law, concept of law...........................................101 Chapter 15. Responsibilities and ensure the structure organization of the state................................................108 Part II Tests....................................................................................................113 Glossary..............................................................................................188 Recommended literature..................................................................191

Preface

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heory of state and law is a fundamental legal course which underlies the entire system of jurisprudence. The course will thoroughly examine the major concepts of state and law. It will explain the different theories of the origin of state and law and will analyze the process of mutual interaction of state and law. In so doing, the course will deal with various types and forms of state; the mechanism and functions of state as well as with sources, system and interpretation of law; systematization of legislation, issues of legal culture, legal liability and law enforcement. Students will also learn the main principles and characteristics of the major legal systems of the modern world (civil, common and religious law). Special attention will be paid to the problems and perspectives of the formation of rule-of-law state and civil society. The main aim of the Theory of the state and law is fundamental legal discipline among law branches. The theory of the state and law studies concept, essence and relationship of the state and law. The theory of the state and law is fundamental legal discipline among law branches. The theory of the state and law studies concept, essence and relationship of the state and law. This subject includes emergence of the state and law, form, function, device of the state, basis of the constitutional

Preface

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state and civil society, rules of law, sense of justice and legal culture, concept and system of offenses and legal responsibility. The theory of the state and law helps students to create deep scientific concepts about the state and law, about legal and political culture, helps to understand their advantages and regularity of development of the state and legal phenomena in various historical eras. The main learning objective of this course is to equip students with the knowledge of key legal concepts and theories related to state and law and to give them a general understanding of what the entire system of jurisprudence is. To serve interests of probably wider general preparation of the student in state and law questions, development at it the special, legal thinking necessary for assimilation and application of law. To create necessary preconditions for the best assimilation of such disciplines, as the state and law theory, history of political and legal doctrines, the state and international law, and also all other legal disciplines, including civil law, criminal law and process. Main objective of a course Theory of state and law is improvement of level of legal knowledge of students. And also the course sets the purpose to create and develop at students, as at future teachers, sense of justice and legal culture. The task of the Theory of the state and law is to help students to create deep scientific concepts about the state and the right, about legal and political culture, helps to understand their advantages and regularity of development of the state and legal phenomena. To serve interests of probably wider general preparation of the student in state and law questions, development at it the special, legal thinking necessary for assimilation and application of law. To create necessary preconditions for the best assimilation of such disciplines, as history of political and legal doctrines, history of state and law in the foreign countries, history of state and law in the Republic of Kazakhstan, international law, etc. The student after studying of this course should know: to have initial ideas of the state and legal phenomena; to understand regularities of emergence, development and state and law functioning; to understand sense and the content of the main legal concepts; to seize a specific legal language.

PART I

CHAPTER 1

Subject and methods of the theory of state and law

1. The subject and the structure of the theory of law. 2. The methodology of the theory of state and law. 3. Place of the theory of law in the system of social sciences. 4. Place of the theory of law in the system of law.

1. The subject and the structure theory of law. In the Greek language «theory» means «consideration», «research». The theory of law implies a form of scientific knowledge, exploring the laws of social development. As you know, all science studies the laws of its object, as that of a stable recurring objective substantial connection between the objects of reality. Theory of State and Law studies patterns of occurrence, development and functioning of the state and law. The authors of one of the new textbooks on the Theory of State and Law, Doctor of Law, Professor V.V. Lazarev, S.V. Lipen and A.H. Saidov note that in the broadest sense, the term «theory» is akin to the term world. Certainly, without a thorough study of the general laws of development of state-legal phenomena industry juridical disciplines would be difficult to investigate its own subject. It is well known that any academic discipline has its own object of study and research. For example, the history of state and law, philosophy,

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political science and other sciences are the state and the law as a social phenomenon in the light of its object and methodology. The subject of the theory of state and law are common patterns of occurrence and development of the superstructure of concepts, as the state and law. We agree with the Doctor of Law, Professor A.V. Malko that «every science has its object of study, which refers to it studies side of objective reality». Doctor of Law, Professor M.N. Marchenko believes that «the definition of the subject of the theory of state and law, as well as any other academic discipline, means establishing a range of social and other phenomena, institutions and agencies that she is studying». In studying the theory of law study: a) The general rules for the government and law; b) patterns unique to the state; c) patterns unique to law. The structure of the theory of law. In another textbook M.N. Marchenko emphasizes: «Talking about the name of science as represented on the sign identifies it should be borne in mind, too, that the industry knowledge and academic discipline is not everywhere and always called and called the theory of law, or general theory of state and law, as it is often called. In some cases, it is associated, for example, with what used to be called an encyclopedia of law». At one time, a famous Russian lawyer G.F. Shershenevich, studying the nature and content of the theory of law, wrote: «At the end of the beginning of the XVIII-XIX century encyclopedia of law is a compound of the elements of the legal, philosophical, and historical. Its content in this, as in the following, the period sees two major trends. On the one hand, is noticeably reduced for the traditional disciplines «overview of the different parts of the positive law. And on the other, «was nominated sketch of the basic concepts of law». Encyclopedia of Law began to approach the «philosophy of law». «Despite the fact that in Russian and Western European universities the discipline initially received considerable attention, as it is often called the» science of sciences «and considered that» it is a necessary introduction to the study of specific legal science», yet the consistency of the encyclopedia of law as an independent branch knowledge and

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discipline suffered from a number of well-known at the time legal scholars questioned. Over time, the Russian encyclopedia of law in name and content gradually «moved to the theory of law», and in the West, along with her and under her some influence gained by such discipline as modern jurisprudence. L.I. Petrazhitsky stressed: «Law is a very ancient science and scientific profession. The existence and development of this abundant academic profession is a typical companion legal life is at such stages of the development of culture, when the emergence and development of scientific and theoretical knowledge and research, the procuring and developing scientific world for its own sake, for the sake of knowledge and explanation of phenomena is not and out of the question». Famous Russian legal scholars, Doctor of Law, Professor N.I. Matuzov and A.V. Malko believe that «the subjects of the theory of state and law are: 1. general laws of the origin, development and functioning of the State and Law, 2. the nature, type, form, function, structure and mechanism of action of the state and law, the legal system, 3. major state-legal concepts common to all legal science». Kazakh team of authors of textbooks on the theory of state and law says: «The subject of a special study of the theory of state and law are the general laws of historical development and the functioning of the state and law, the unity and conformity of types of state and law, laws governing the transition from one type of government and the rights to another, a combination of the state and in fact the right of their social purpose and function, the ratio of the type and form of the state and law, particularly the formation and functioning of the state mechanism and system of law, the development of democracy, rule of law, the formation of law and civil society». Doctor of Law, Professor A.S. Ibraeva states: «Legal Science is a system of complete and comprehensive knowledge of the law and the state, which is based on a set of concepts, categories, and the scientific principles that reflect the patterns of occurrence, development and operation of data phenomena. Jurisprudence (Law) is a system of special public knowledge, in and through which the theoretical and applied development (learning) state-legal reality». In legal literature, the subject of the theory of state and law is ambiguous. So, Doctor of Law, Professor Andrey Denisov by subject of theory of law means «common patterns of occurrence, development and functioning of the state and the law itself, and specific patterns of occurrence, development

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and functioning of the state and the right of every individual in the class (usually use the term «historical») type». Doctor of Law, Professor V.V. Lazarev convinced that «the subject of a general theory of law and the state, as follows already from the name of this branch of science, is the legal and public events, patterns of their origin, development and ultimate fate. In the subject of the science and discipline, respectively, obviously, should include objective social laws defining specific properties, features, attributes and rights of the state, their relationships and interactions, their tasks and role in relation to other social phenomena». In another textbook V.V. Lazarev notes that «the subject of a general theory of law and state law and the state act as a social phenomena, laws of their origin, function, and their class-political and universal nature, content and form, the legal relations and communications , especially the legal awareness and legal culture». Many legal scholars on the subject and system concepts in the theory of state and law distinguish theory and the theory of the state law. Specifically, they believe that the theory of the state is a system of two theories: the theory of state and law theory. The author of this tutorial is also of the position. Outstanding legal scholar, Doctor of Law, Professor V.S. Nersesyants says: «This shows that defined the general theory of law and state common subject and method of legal science in general, it is both the subject and method as every law of science (discipline). Subject and method of the general theory of law and the state is the general theory and methodology of the entire law as unified, independent, system integrity of science. Subject matter and methods of the general theory of law and state, so are the common scientific foundation of all law, its subject matter and methodology, its system and structure, its ontology, epistemology and axiology». The notion of essential characteristics also captures common objects and phenomena. The system of concepts of the theory of the state consists of the following concepts: the state, the type of state, the functions of the state, the state apparatus, form of government, the mechanism of the state, etc. The system of concepts of law includes the following concepts: the right type of law, sources of (forms) law, the legal system, legal system, the legal, law, rule of law, the offense, legal liability, legal culture, legal nihilism, etc. 2. The methodology of the theory of state and law. The term «methodology» is derived from the Greek words methodos – «the way

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to something,» and logos – «a word, concept, teaching.» It is used as a theoretical justification of methods used in science learning. A method is a way to achieve a goal, solve a particular problem, the set of modes or operations of a practical or theoretical understanding of reality. Doctor of Law, Professor M.I. Abdulaev and S.A. Komarov categorically state that «the methodology of legal science is a complex entity, including a system of different techniques, and logical methods and means of knowledge of certain legal phenomena. The methodology of the study of law has three elements: 1) philosophical understanding of the phenomena, and 2) scientific methods, methods of research, and 3) private legal research methods, specific only for legal disciplines». «With the development of the science complex problems with understanding the essence of the methodology of scientific knowledge never ran. Place, role, significance of scientific methodology has been and remains the subject of research, not only philosophers, but also a wide range of representatives from the natural and social sciences. Methodological aspects in the field of legal science are of crucial importance for a number of reasons, both utilitarian and global scale».The methodology of science is: a) part of the science that studies the methods of research used by this science, and b) are themselves used methods. According to JD, Professor M.N. Marchenko, «methodology of theory of law is a system of special methods, principles, and methods for the study of the general laws, the formation and development of state-legal phenomena. For the theory of law peculiar existence of not one any single admission, principle or method of study of the state and law, and their systems together. Many of them are widely used in other sciences. This applies particularly to the study of the principles of public-legal and other matter, and philosophical approaches». Theory of State and Law has the following methods: 1. General science (sets the philosophical direction) – the most common approaches to the study, the universal principles of knowledge shared by all sciences. Before embarking on any of the cognitive process, it is necessary to decide on some of the issues that are of fundamental importance: whether there is a real objective world, on whether there any laws, whether they are knowable, etc. a) materialism (from the Latin «materialis» – is real, based on the assertion that the world exists independently of our consciousness.

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This philosophical direction that comes from the fact that the world is material, there is an objective, outside and independent of consciousness, that matter is primary, no one is created, there is forever. Consciousness, thinking is a property of matter, is usually approved knowable world and its laws; b) idealism, based on the assertion that the world exists because of our consciousness; c) the dialectic – the theory of development of being and thinking. In this case, the following principles: the principle of common development, the principle of the universal connection of phenomena, the principle of a comprehensive review of the facility, and the law: the unity and struggle of opposites; transition from quantitative to qualitative changes; negation. Dialectics is a universal method of knowledge and demands into account in the process of cognition of reality universal inter-dependence and the constant development of the phenomena. d) metaphysics – a phenomenon seen as fixed. «Thus, the dialectic method of jurisprudence, principles, techniques and tools of dialectical study (the dialectic of unity and struggle of opposites as a source of self-reality, the ascent from the abstract to the concrete, the unity of thinking and being logical and historical, dialectical methods of analysis and synthesis, etc.) are used in their legally refracted and specified form, as methods and means of legal knowledge, and the means of achieving the legal expression of the dialectic, that is, specific dialectic specific legal subject». 2. Particularly-scientific (common to specific science) – these are the rules, techniques, methods of direct provision of specific knowledge. They are diverse and depend on the level and direction of the research and scientific exploration. Particularly-scientific discussed below methods are called is very conditional, because they are used in many sciences, not only humanitarian. This name emphasizes not so much at all the private nature of various methods of scientific understanding of reality as is the ratio of the latter to the methodological basis of socalled scientific method. a) system method: The system being studied and the relationship between its elements, we study the appearance of the object, its formation and further development; b) special techniques borrowed from other fields, are used only in respect of the research;

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c) private law, used only in legal studies: Comparative Legal (compare effects on the region, time, and other branches of the law) the formal legal. As rightly noted academician, Doctor of Law, Professor S.S. Alekseev: «The specific legal ideas give rise to a new start to approach the place and purpose of legal science and legal experts in the legal and social life, and some facets of the concept of law». «The methodology based on the theory that has had a profound impact on the practice. In this practice has the ability to exercise significant influence over the content and progress of the theory. Interconnections of theory, methodology of scientific knowledge, their influence on each other, the total dependence on social practice queries and science, to some extent, the autonomy of their development can not categorically define the primary one and the derivation of others. Hierarchy in its general sense in the above chain is not only impossible, it is not necessary, because, in our opinion, in each case, depending on the continuously updated at the moment the goals and objectives established a hierarchy». A method is a set of methods and techniques necessary for the study of the subject. According to Doctor of Law, Professor A.B.Vengerov, «methodology is objectively defined object of study, which follows from the general conceptual approaches, the level of scientific knowledge, a part of every science, its essential element. The methodology is a system of methods, a set of methods and techniques of research, knowledge about them». «However, the political and ideological diversity, various philosophical and ideological positions and approaches to the study of state and law are not exclusive, but on the contrary, strongly suggest to obtain objective knowledge, comprehensive information about the study of matter, the use of a number of private and common principles and techniques characteristic of not only for the theory of law, but also for the humanities and academic disciplines». Methods of the theory of state and law is techniques, methods, approaches that are used by it for the knowledge of his subject and obtaining scientific results. We have already noted that all methods are classified as: general method (metaphysics and dialectics), scientific methods (analysis, synthesis, system approach, the functional approach) particularly-scientific methods (specific sociological, statistical, cybernetic methods) and private law practices (formal-legal, comparative legal methods).

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The main method of theory of law is the dialectical method. Theory of law in this case is studied using the three laws of dialectics: 1. Law of the transition of quantitative changes into qualitative means the state in the development process accumulates changes to their system. 2. The law of negation means that any phenomenon, denied today, maybe tomorrow realized. 3. Law of the unity and struggle of opposites means that in the same place at the same time there may be events, mutually exclusive. It should be noted that the methods of the theory of state and law are varied, but together they contribute to the knowledge of such complex phenomena of society, the state and law. Known legal scholars of CIS emphasize that «the methods of the theory of state and law is the techniques, methods, approaches that are used by it for the knowledge of his subject and obtaining scientific results». Russian jurists writing team selects a method such as a predictor, which is defined as «a set of tricks to make evidence-based predictions about the future state of legal phenomen». 3. Place theory of law in the system of social sciences. It is well known that all the sciences are classified as human, or social, as well as the natural or technical. In this case, to the humanities we include philosophy, history, economics, political science, sociology and jurisprudence. The natural sciences are the same physics, chemistry and biology. The system of law includes historical and theoretical science, industrial science, interdisciplinary science, science, study foreign state and the law, the application of Law and International Law. For historical and theoretical sciences we relate the theory of state and law, history, government and law, and the history of political and legal doctrines. Together jurisprudence is a system of knowledge about the general and specific patterns of political and legal origin, development and operation of state-legal phenomena. We are considering an academic discipline theory of state and law is a system of knowledge of the objective laws of social development, as reflected in the state and legal developments, and a special mechanism for the regulation of social relations. According to S.S. Alekseev, «the real value of the rights, his high prestige in the world at the turn of the third millennium is really deep, justifiable reason. Right from its very nature can be characterized as ours, people’s hope».

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As noted I.D. Andreev, «theory is the highest form of organization of scientific knowledge about a specific area of ​​the objectively existing real or about a particular phenomenon. Great scientific and practical significance of this complex synthetic form of knowledge is that it fully disclosed the object of knowledge. Each element of the theory, each of its concepts, laws and other theoretical and empirical data indicate the object with a particular party, mentally reproduce one of its properties, characteristics, relationships, and together they cover it from all sides, perfectly reproducing all to get to know diversity». All the social sciences have as their object the society. Philosophy – the science of the most general laws of nature, society and thought. The object of the study of philosophy is the world as a whole, the result of research – a picture of the world. According to V.S. Nersesyantsa, «philosophy studies law and the state in the context of the study of general patterns of physical, social and spiritual world, of being and thinking, etc. Philosophical knowledge of law and state directed at understanding their semantic content from the standpoint of the concept of philosophy and philosophy of mind. It finds its concentrated expression in the respective ideas of law and the state, in building their designs and patterns of thought». In one of his works S.S. Alekseev carefully noted that «the use of these philosophies can lead to speculative dogmatic philosophizing on legal issues, and besides, with the ideological load, and then another negative result, only to» philosophical terminological dressing «has long been known concepts, research results, the facts». Doctor of Philosophy, Professor A. Kasabek wrote: «In contemporary philosophical research methodology adopted to represent as the science of building a human activity. Philosophy distinguishes social and historical dependence of human activities on the level of its forces and the nature of the problems that arise in front of him». Sociology – the science of society as a whole, as well as its components: social institutions, social processes, social groups, relationships, individual and society. Application to the State and Law Sociology studied their role in society. Sociology is directly related to the management, which is carried out by state and law. Economic theory is the science that studies the relations of production, i.e., relationships that are associated with the production, exchange and consumption of material goods, as well as ownership. Application to the State and the right economic theory studies the influence of the state and the rights of the economy.

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As emphasized by Doctor of Law, Professor L.S. Mamut, «tangible changes undergone by the state now, determine, on all accounts, especially the radical transformation of the world economic community. Conglomerate of more or less interconnected economies of different countries and continents, it is visibly a single global economic organism; national economic systems are its constituent elements. Many of the key to the whole economic world order decisions are made by them. When making centers such decisions are largely outside of the boundaries and extent of the jurisdiction of the national state significantly attenuated the possibility of the latter in due measure to influence the economic processes taking place within the nationstate boundaries. It’s becoming more difficult to use the traditional levers of macroeconomic regulation, to protect the economic system from unwanted external economic and foreign influences. It can be said that «... globalization objectively leads to erosion and ensure the regulatory functions of the nation state. Later, not too much deviating from the truth, he added: «This situation entails a reduction in the level of control on the part of the nation-state is not alone the national economic processes, but also the processes of social, informational, and others». Political science is the science that studies the relationship between people on the government. Application to the State, political science studies its place among the other institutions of the political system of society (political parties, associations, etc.). The main objective of the study of political science speaks of politics as statecraft. We agree with the authors of a textbook on the theory of law that «communication theory of law with different social sciences is bilateral. On the one hand, the theory of state and law of the advancements of the social sciences, on the other, the last account, to some extent, the development of jurisprudence. This conclusion follows from the fundamental principle of the unity of science and the relationship knowledge. Consequently, between the social sciences there is a close relationship, especially with philosophy. Creative use of the pinnacle of achievement of philosophical knowledge largely determines the level of general scientific theory of the state and law, which, in turn, empowers philosophy rich material to enable the development of common principles, freedom and social process». 4. Place theory of law in the system of law. To branch jurisprudence include: criminal law, criminal procedure, civil law, civil procedure,

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labor law, constitutional law, family law, business law, penal law, social security law, administrative law, land law, financial law, tax law, environmental law. The basis of separation of law is a substantive criterion, which is a special range of public relations, who has studied this science. However, one should take into account the relationship of the state and law and other social phenomena: politics, morality, and culture. It should be noted that the system of law-moving phenomenon is changing. Thus, in accordance with social needs, new areas of law appear, and old fade. At one time there were industries such as collective rights, the right to state farms. Jurisprudence takes special place occupied by the theory of state and law. To interdisciplinary sciences include: organization of justice, criminology, public prosecutor’s supervision. Sciences that study the foreign country and the right, this is the Roman law and the constitutional law of foreign countries. Applied to legal sciences include: legal statistics, forensic psychiatry, forensic medicine, forensic, legal psychology, forensic accounting. In the category of international law include: public international law and private international law, international human rights, the law of treaties, the law of international organizations, diplomatic and consular law, international maritime law, international air law, international space law, international oil law, the right of international security, international environmental law, and international economic law. History of legal and political doctrines is the science that studies the history of the theory of the state and law. Theory of law only covers modern theory of the state and law. Thus, the history of legal and political teachings is the history of the theory of state and law. History of State and Law is the science that studies the origin and development of the state and the rights of particular societies in chronological order. The theory of the state and the right to study the state and the right of the theoretical, abstract form, i.e. general features of the state and the rights of all communities. Sectorial legal sciences are separate legal branch, i.e. particular aspect of public-legal reality. The theory of state and law studies this reality as a whole, and focus on the interconnection of its various sides. Based on this theory of law is developing a system of legal concepts, which are then used by all industry jurisprudence. Problems arise, operation and further development of the state and the rights of nature, reflected in people’s minds to a greater extent are

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political problems, as have an impact on the political and legal society. State and law is a social phenomenon, caused by the emergence, operation and further development of society. Features of theory of law are that it is a public science, the subjects of which are social phenomena, the state and law. This feature of the theory of state and law is different from a number of other sciences, such as natural, technical. It also serves the political and legal science, which studies such social phenomena that are directly related to the field of politics, the power of the state. This feature of the theory of state and law is different from other social sciences; students are not directly state-legal superstructure. In addition, it is a general theoretical science that studies the basic and general laws of the state and in common law. This distinguishes it from the special Law. Further, it is the science of the methodology, which covers the general rules of public-legal superstructure and developing issues of the method. And, finally, it has a basic character for the rest of law. Under the theory of law addresses the legal phenomenon that seemed to encompass and permeate all legal disciplines. Thus, the theory of state and law is a system of generalized knowledge about the basic and general laws of the state and law, of their nature, purpose and development of the society. The subject of the theory of state and law are the most common patterns of occurrence, development and functioning of the state and law, as well as a system of basic legal concepts and categories. It should be noted that the theory of the state and the right to study the origin, development and functioning of the state and not a specific law and all general and special, inherent states in general, as well as general legal concepts: rule of law, a legal relationship of justice, rule of law. Theory of law as a fundamental theoretical science has a number of specific functions: 1. Ontology function (from the Greek «yn» – gender, case) to answer the question of what the state and the law as they arise and that are currently available. Ontology is the branch of philosophy that addresses the universal basis, the principles of existence, structure and pattern. 2. Epistemology function, or a function of knowledge, with which the theory of state and law develops theoretical methods and ways of knowing, which ultimately leads to the development of legal knowledge. Epistemology (from the Greek «gnosis» – cognition) is

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theory of knowledge, the main part of the philosophy that considers the conditions and limits the possibility of reliable knowledge. 3. Heuristic function (from the Greek word «heuresko» – opening). Here the theory of state and law explores not only the known laws of the concepts of state and law, and related phenomena, but also finding new patterns generated by the realities of public life. Heuristics is a rule of thumb that facilitates or limits the search for solutions in the complex domain. 4. Methodology function, implying the methods and techniques of research concepts being studied, which, in turn, are part of the legal science. 5. Politics and management functions required to keep the political power in the hands of a particular social stratum. 6. Ideology function. By ideology is a system of beliefs and principles of a particular group of the population, society, social stratum. As an example, the former Soviet Union, where there was only one ideology, Marxism-Leninism. In Kazakhstan sort of ideological agenda is the message of the President of the Republic of Kazakhstan «Kazakhstan-2030». 7. Practical-organizational function is when the theory of state and law, based on the existing practical and theoretical material, and makes recommendations for how to solve a particular problem. 8. Forecast feature is when on the basis of study of the laws of the state and law theory predicts a further development of certain concepts, changes in state law field. Naturally, all the features of the theory of state and law are intertwined and complement each other and combine to give a complete picture of the appointment of the theory of state and law. Questions for the self-control: 1. What is methodology of the Theory of state and law? 2. What is the main difference between the state and other political organizations? 3. Why the Theory of state and law belongs to the inter-branch disciplines? 4. What represents the structure of the Theory of state and law? 5. Account the main functions of the Theory of state and law. Task for srs: Please, explain the elementary logic of the power thorough the methodology of the Theory of state and law.

CHAPTER 2

Origin of state

1. The nature of power in a primitive society. The state as a political, geographical, structural organization of early class society. 2. Typical and unique shape of the state. 3. The mechanical and the organic theory of the origin of the state.

1. The nature of power in primitive society. The state as a political, geographical, structural organization of early class society. The formation of the state is a lengthy process, and in different countries, in different nations, it came in different ways. Science itself theory of law provides a variety of information on the origin of the state on the basis of existing numerous theories. In primitive society, the basic unit of governance advocated race. The tribal elders addressed the most important issues of public and political life of the tribe. Tribe is a historically definite shape association of people bound by ties of kinship that have a common ancestor. But it can also be a social group, which is a joint household together. At the heart of public power authority lays elders (leaders) tribes and the Council of Elders, which governs all members of the genus and the unions of labor (tribes). Thus, power is the impact on the behavior of some people (activity) of other, when one of them subordinates the will of others. Power is a social relation. Public power is power, which applies to the whole of society, acting on behalf of the whole society, the action in the public interest, is impersonal in nature, i.e. apply to all persons within a given territory. State – people who live in a certain area and the combined power. Thus, the state is an organization of power in society. State is a special social organization that has features that

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distinguish it from the pre-state organizations and other institutions of civilized society. Signs of the state: 1. State power is public. State power is a necessary condition for the existence of society and is used for the management of joint activities of people and the maintenance of public order. Power is the impact of the behavior of some people (activities) on others, with some others subordinate his will. Power is a social relation. Public power – is power, which: a) applies to the whole of society; b) acts on behalf of the whole society; c) acts in the public interest; d) is impersonal, i.e. applies to all persons within a given territory. 2. The territorial division of the population. In the pre-state period of the society that people were divided on the basis of tribe and the emergence of the state are divided on the basis of finding a certain area. 3. The presence of a special apparatus of power. People in this unit do not produce material and spiritual wealth, and professionally engaged in the management of other people. 4. The presence of taxes and loans. The system of taxes and loans is financial security of the state. 5. Sovereignty. Signs of State sovereignty: 1) from the inside: a) the rule of the government, i.e. its extension to all persons on the territory of the country. Is provided by law (state regulations) and the apparatus of power; b) the independence of the government, it is independent of other authorities in that country; 2) from the outside – the independence of the government and its independence from other authorities outside its territory. No one other than the state may not issue in that country generally binding regulations (laws). The ratio of state sovereignty, national and popular sovereignty: national sovereignty is the sovereignty of the nation, i.e. ability of the nation to decide questions of the organization, including the right to self-determination, including the creation of a separate state. Nation – ethnic group of bourgeois society, united in

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the economic life, territory, language, culture and national identity. Popular sovereignty is the sovereignty of the people (the majority population), i.e. people are the source of state authority and sells its power through the direct (immediate) and representative (indirect) government. Direct democracy is the direct elections and referendum. Representative democracy is an activity elected representative bodies. 2. Typical and unique shape of the state. The basis of the origin of the state based on the following reasons: economic reasons, the Neolithic Revolution, when the transition from gathering to producing economy, three major social division of labor: the separation of livestock farming, crafts and office appearance merchants productivity growth and the emergence of surpluses, the emergence of private property, social causes expansion and the emergence of the genus of the family, the appearance of insoluble antagonism and division of society into classes with diametrically opposed interests. Scientific understanding of the state as a civilizational phenomenon is impossible without knowledge of its historical roots, of the conditions under which it arose, how to develop and how it became a modern reality. Statehood in Central Asia, there is not eternity, but there was a certain stage of human development. According to the latest data of anthropology, but the history of modern Cro-Magnon man (homo sapiens) has about 40 thousand years, while the first public education in the history of mankind have only about 5 thousand years ago, at the turn of the fourth and third millennia BC . Consequently, the state is a relatively recent invention of mankind. Absolutely most of his adult stories people living outside the state-organizational society. According to some legal scholars, the earliest forms of association ancestors of modern man were due to (temporary) family and tribal loyalties to be protected from the external environment and the sharing of food getting. Such forms may be separate «family», but the best known groups forming primitive herd has arisen among hunters of pre-Neanderthal Olduvai culture (about 2 million years ago). They are united by the use of primitive tools, which were sticks, poles, stones. Later, during the Paleolithic culture, have a more stable form of joint work, and tribal community has become a social unit of the primitive. Further improvement of the tools required the development of highly specific habits of primitive man as memory, speech, etc. Tribe had a great importance for the development of the material culture of the tribal system. Mining economy of primitive man, i.e.

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who had the finished product as a result of the nature of the gathering, hoe agriculture, beekeeping, hunting, and fishing provides only the minimum needs of the community. The role of women was housework and child rearing, was leading. History knows many cases matriarchal ancestors. On the other hand, there were patriarchal clans in ancient Egypt, India, Judea, in the eastern Slavs and Scythians. Thus, the genus (primitive tribal community) is the primary cell of the organization of primitive society, formed on the principle of blood kinship, joint teamwork, common ownership of the fruits of production and resulting from these conditions of equality of social status, common interests and solidarity of the clan members. Primitive society was in its various stages of development. There are several distinct types of periodization of primitive history, general historical, archaeological, anthropological. For the theory of statehood are particularly valuable periods, based on the latest data of archeology and to stand out as one of the main lines of development of primitive society «Neolithic Revolution» (from the «Neolithic» – New Stone Age). This concept was introduced to science in English archaeologist G. Child of mid XX century, analyzing the qualitative change in the life of humanity in the transition to the Neolithic in the VII-III century BC by assigning to the mining economy. The question of the origin of the state is one of the most controversial in the historical and legal science. There are numerous theories to explain the occurrence of different states. However, even under the existing concepts and theories do not have enough on their minds about the birth of statehood. Several millennia, centuries or even decades ago, states were not as they are now. Talking about the history of the state, usually use the category «type of state». Type of state is a set of common features inherent in particular, as a rule, historically separated groups of states. For many years in the legal science was widespread formational approach to the history of the development of society and the state, cultured in the Marxist-Leninist ideology. And the type of the state is determined by the economic system of class society, and history was seen as a simple process of changing socio-economic systems. The main disadvantages of this approach were: the single line in the definition of the historical development of the state, a mechanical change in the type of, the inadequacy of five-element circuit socio-

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economic systems, ignoring the history of the state multi-variant, it is not taken into account the Asian or Oriental mode of production, spiritual factors were underestimated, erroneous opinion «withering away» of the state. Currently plays an important role civilizational approach to the typology of states, based on the term «civilization». Broadly the concept of «civilization» as a synonym for culture in general, reflects the level of development of society and cultural values. Civilization is an original and complete set of (system) climatic, economic, ethnic, cultural and religious relations in society, forming a type of society and the state. According to many legal scholars, «with a modern point of view is more valuable civilizational approach to the typology of states based not on the external and the internal features of the functioning of state. The State is the organization of power; therefore, analyzing the characteristics of the various states should focus primarily on aspects of the formation, membership, implementation of state power. From this position in civilized approach to the typology of states in the classification ratio is taken state and the individual». The main difference between the civilization and the formational approach is the ability to analyze the processes of development of the society and the state in the light of representations of human value system. At the time, the term «civilization» was introduced into scientific English historian A.J. Toynbee. In his famous work «Study of History», he formulated the theory that the cultural element is the «soul» of the blood, lymph, the essence of civilization. The researcher believed that civilization – it is a closed society and the local state, distinguishes a geographic, ethnic, religious, and many other features. A.J. Toynbee distinguished in history 21 civilizations: Egyptian, Chinese, Western, Far Eastern, Orthodox, Slavic, Arabic, civilization interfluve and Native American (Maya, Inca, and Aztec), etc. We have seen that the determining factors in the development of statehood advocate socio-cultural indicators of society, tradition, and the level of spirituality of the people, his mentality, especially ideological, geographical location, etc. It should be borne in mind that any society is a step in the hierarchy of organization. Culture of ancient societies to early agricultural civilization was called. Thus, the state is an important organizational form of the existence of mankind, which has a great social value and plays a major political role.

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Theory of state and law

We now give the signs that distinguish the state from other political institutions: public authority, that is, presence of a special administrative apparatus, the state acts as the official representative of the interests of society as a whole, based on the territorial division of the population is a sign, the sovereignty, the presence of a special apparatus of compulsion and tax system of loans. According to the state of the class approach is a political organization that supports the rule of one class over another, the minority over the majority, in fact, the dictatorship of the economically and politically dominant class. According to the general social state approach is a political organization whose members are united on the basis of certain power relations in order to achieve consensus. The famous Latin saying goes: «error multiplex, veritas una», which means: «the truth is always the same, false judgments can be any number». Indeed, the general characteristics of the variety of theories of the origin of the state that emerged in ancient times and explaining certain aspects of the process of the state, there are both positive and negative features. Differ the following forms of the state: a) European, first appears when the private ownership of the means of production, and classes, and then the state as an instrument of the ruling class (Athens and Rome); b) Asian, when the state first appears, and then classes (Ancient East, Egypt, Babylon, China, India). Distribution of agriculture in Asian countries require of irrigation works, for which was necessary to coordinate collective action. Management of this work was carried out overbearing ways. For work concentrated material resources in the first place, the means of production. Thus, people who are employed in the apparatus of government later became owners of the means of production, and not vice versa, and the role of class struggle in the origin and development of the state is considered to be negligible. 3. The mechanical and the organic theory of the origin of the state. There are many theories of the origin of the state, which differ from each other paradigmatically (paradigm – a way of formulating and solving scientific problems) for the following reasons: a) different real historical conditions in different societies; b) the different philosophical bases for the construction of theories.

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The most common are the following theory of the origin of the state: 1. Theology (theocratic) – Thomas Aquinas. The essence of the theory is that the state has emerged as the result of divine providence. 2. Patriarchal (paternalistic) – Plato, Aristotle. It was based on the power of a father, husband, that masculine-pater families. All other members of the family, clan were obliged to submit to the householder. 3. Contract Jean-Jacques Rousseau, Hugo Grotius, Benedict (Baruch) Spinoza, John Locke, Thomas Hobbes, Radishchev. It has spread in XVII-XVIII centuries. It was assumed that the state arises as a product of the social contract of people transferring part of their freedom and power of the State to protect their interests and property. 4. Theory of violence, E. During, L. Gumplovich, K. Kautsky. It originated in the XIX century. The main reason for the origin of the state, according to this theory, was in the military-political factors: violence, enslavement. 5. Organic – G. Spenser. This theory suggests that the basis of the human body is the same processes as in organic chemistry: atoms, molecules, etc. 6. Psychological – L. Petrazhitsky, Erich Fromm. It aimed at the heart of the idea that human nature can not do without subordination to the leader, the ruler. 7. Materialist, or Marxist-Marx, Engels, Lenin, Plekhanov (2nd half of XIX century). Briefly, it was described in Engels’ The Origin of the Family, Private Property and the State. Key points: the state arose as a result of the social division of labor, the emergence of private property and classes. In these circumstances, the state acted as an instrument of the economically dominant class – the owners of the means of production. With the help of the state, this class is also the politically dominant. Decisive role in the origin and development of the state is the class struggle. They tied for first place the idea of ​​the dictatorship of the proletariat, and the form of the state seen as a Republic of Soviets of Workers’, Peasants’ and Soldiers’ Deputies. Candidate of Law, Associate Professor D.A. Bulgakova allocates another theory for the origin of the State irrigation theory when «their first despotic forms associated with the need to build huge irrigation facilities in the eastern agricultural areas». Most clearly reflected this theory has been in the works of contemporary German scholar K.A. Vittfogel.

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Theory of state and law

Ways of forming the state: 1) appropriation of the surplus product; 2) assigning positions by inheritance. Estimation theory: dignity – to economic and class factors, lack of underestimation of other factors. In the study to draw attention to the following aspects: a) the period of the formation of the theory; b) the main representatives of the theory; a) are (basic provisions) theory; d) evaluation of the theory (the degree of scientific and practical utility). Questions for the self-control: 1. What is the difference between the functions of the leader of the tribe from the functions of the elder men? 2. What are the advantages and disadvantages of the treaty theory of the creation of the state? 3. What is the basis of the so called river cultures? 4. What are the advantages and disadvantages of the sociological theory of the creation of the state? 5. Account the main ways of the origin of the state. Task for srs: Please, analyze the eastern and western ways of the creation of the state and express your mind in the table.

CHAPTER 3

Origin of law

1. «Mononorms» as social regulators in assigning the economy of primitive society. 2. Functions of law in early class societies. 3. Law as the basis and means of state power in the early class societies. 4. Theories of origin of law.

1. «Mononorms» as social regulators in assigning the economy of primitive society. The term belongs to the famous Russian lawyer, academician of Russian Academy of Science, Doctor of Law, Professor S.S. Alekseev. By «mononorms» he means a set of customs, traditions, religion, cults and rituals that are common in the era of primitive society. Mononorm means single, undifferentiated rules and norms that are both moral and religious beliefs, and customs. In ancient times, there was a unique system of prohibitions and permits, to appear in the form of taboo prohibitions on certain activities. Under the taboo means the whole system of bans on certain acts, violation of which they are responsible by supernatural forces. For example, there was a taboo on incest (incest among close relatives), cannibalism, and murder. Doctor of Law, Professor A.B. Vengerov emphasizes that «positive binding was intended to organize the required behavior in the cooking process, the construction of houses, fanning the fires and keep the fire, make tools, vehicles, such as boats». Mononorm violators punished expulsion from the community, public censure, the death penalty. «Thus, on a theoretical level, should provide not only the presence in the historical development of mankind two ways of managing and

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Theory of state and law

assigning-producing economy, but there are two fundamentally different systems of regulation, clearly linked to the nature, economic and environmental characteristics of these methods of management, to the full range material, social and spiritual relationship that existed in them». By custom, to understand the rules of behavior, generating in the society by its repeated recurrence and subsequently becoming a habit, and then fixed in the consciousness and passed down from generation to generation. In this tradition is characterized by the unity of rights and responsibilities, lack of clear criteria for distinguishing between them, and he represents the interests of all members of the genus, without exception, provided the force of public opinion and has a religious character. Of course, custom establishes the equality of all members of the genus, a vendetta on the principle of retaliation, an eye for an eye, a tooth for a tooth, and the equal distribution of collective and common property. As well as the state, the law, there were several thousand years ago as a result of the «neolithic revolution». It, too, has not always existed. Rules that prevailed in primitive society, manifested in the form of myths, cults, rites, rituals, customs and traditions. They were objectively by the necessity of existence in the harsh climate. According to many researchers, they had a «natural basis». Process of law is quite objective, as law replaces mononorms. Some authors identify certain phases in the development of law. You can do three main phases in the development of law. The first-phase nucleation is primarily for those societies where there is a formation of producing forms of economy. The second phase marks the formation of the design of the regulatory system into a system of rules (norms). This phase is linked to such companies, where there is a complete victory for the various forms of producing economy. Finally, the third phase is associated with the written codification of the law in some early state institutions. In the first legal monuments there is a lack of clear division of rights to the industry, pronounced presence established at the time prescriptions and customs cases. There are two main ways of development rights. Where dominated by a state property, the main source of law fixation technique is usually collections of moral and religious positions (the laws of Manu in India, Quran, in Muslim countries, etc.). In a society based on private property, which causes the need for equality of rights owners, to develop, as a rule, more extensive, have a

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higher degree of formalization and certainty of the law, and above all, civil, regulating more complex system of social relations of property. Quite original and comprehensive process of law is studied in A.B. Vengerov. Various aspects of the problem of law and public thoroughly analyzed in the book by T.V. Kashanina where characterized by normative regulation in primitive society, as well as the objective laws of the historical process of the emergence and deve-lopment of the law. By carefully analyzing the various theories of the origin of law: conciliatory, regulatory, theology, and the theory of natural law, historical theory, Marxist theory, and the theory of specialization. 2. Functions of law in early class societies. Functions of the law mean the main directions of its impact on social relations, which are determined by its social purpose and essence. Doctor of Law, Professor S.A. Komarov understands the function of the right main lines of the regulatory influence of the state on the social relations that correspond to the socio-political, economic and ideological content of the regulation. In early class societies, the right-perform the general functions to collect taxes from citizens carrying irrigation, regulatory functions, and the social and protective functions. 3. Law as the basis and means of state power in the early class societies. Right in the early class societies is the basis and means of government. The law is a system of mandatory, formally defined, established and protected by the state rules of behavior that express the will of those in power of political forces. Right in this comes directly from the state, is a regulator of social relations, and is characterized by systemic, non-personification and dynamism. Law is a social regulator. Social regulation is necessary to ensure the normal functioning of society. The essence of social regulation is to influence people’s behavior and activities. In society, there is a system of social controls, consisting of the following elements: customs, i.e. rules of conduct created by the multiple repetition and transmission from generation to generation, morality, i.e. standards of conduct that reflect the people’s ideas of good and bad, of right and wrong, etc. Sanctions for violations of the moral act, on the one hand, man’s conscience, and on the other hand, a public reprimand, corporate norms that regulate relations in the workforce, the rule of law, which are stated or authorized by the state, and their implementation is provided by coercive power of the state. In addition, they generally binding and regulate social relations, securing the rights and responsibilities of the participants.

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Theory of state and law

Essentially right arises for the same reasons as the State. Right arises and is formed simultaneously with the state. It regulates the social relations in the society as whole and certain social forces. The ratio of these interests may be different in different periods of development. The theoretical understanding of process of historical development of the law presents great interest. As in the theory of the state, in theory of the right it’s possible to speak on the historical development of this social phenomenon, using the category of «historical type of law.» In the study of the development process of law may also be used formation and civilization approaches. We are talking about the characteristics of a slave, feudal, bourgeois and socialist law and the right of traditional and modern states. Note here that the formational approach, because of its lack of flexibility is increasingly becoming part of the history of science. He was replaced by a civilizational approach, which, unfortunately, is still not widely accepted in legal science. Zoroastrian legal tradition does not create any new and original ideas from the previous period, as in a centralized state, which was the Achaemenid Empire there was no need for any other than the state itself, the source of law. The function of religion was to highlight the already existing law, not to create a new one. There was a kind of dualistic option Zoroastrian law, often identified with the entire content of the exercise. As noted by L.A. Lelekov «comitted one level below the systematic theology and is forced to compete in person ... in a battle between good and evil». Thus, the problem of studying the process of legal development is the actual problem of the general theory of law. 4. Theory of the origin of law. There is a variety of theories of the origin of law: 1. Legal positivism and normative approach to understanding the law. One of the founders of the theory is G. Kelzen. Representatives of this direction saw the right of the product of the state will, contained in legal acts issued by the state. This approach allows citizens and implementing legal requirements to view the content on the text of the latest regulations and elect the best option would be. In this theory, the right to have a hierarchy of norms in the form of a pyramid, stairs, on top of which are the constitutional norms, followed by the rules of law, the norms of action by the government, the rules regulations of ministries and departments. G. Kelzen recognized the right of public

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as expressed in the mandatory legal act which is collateralized by coercive power of the state. The dignity of the normative approach is that it most clearly in contrast to other theories of the origin of law, determines the quality of focused right-normativity that is organically linked with the formal definition of law. The disadvantage of this approach is that it ignores the content side right, the personal rights of the individual. 2. Sociological legal theory emerged in the late XIX century. The most striking of its representatives L. Dyugi, P. Erlih viewed right as the current practice of implementation of existing laws. It is quite attractive for legislators and for the researcher. For a detailed study of the law is necessary to know the current legislation, to identify and fill gaps in the law. 3. Psychological legal theory developed for a long time in the sociological theory of law. It originated in the late XIX-early XX century. The most famous of its founders are L.I. Petrazhitsky, M.A. Reysner. They believed that the right is a product of mental experiences of people. However, they have eschewed the distinction between law and justice, and have fiercely rejected the normative theory of law. 4. Theory of natural law is one of the most common theories of the origin of law. Its representatives, Socrates, Plato, and Aristotle did not share the views of the Sophists, who argued that the basis of the right of education is nothing immutable. This theory is largely in line with the contractual theory of the origin of the state. The representatives of this theory are distinguished: a) the natural law as a product of human and social nature. They argued that the rights and obligations arise on the basis of objective needs of society. Some of their rights people succumb to the state, concluding an agreement on its establishment; b) positive law, in their opinion, comes from the state and must fully comply with the natural law to ensure fairness. The advantages of this theory can be noted as a measure of understanding of the right of freedom and social justice. The disadvantages may be referred to the interpretation of law as a dogma, eternal, immutable. 5. Theological theory of the origin of law based on the sacred sources, above all, in the Bible. Its founders, Thomas Aquinas, Aristotle argued that the rights of the people are of divine origin. However, P. Golbach in his book «The Sacred contagion or natural history of

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Theory of state and law

superstition», based on the power of the monarch and related legal norms and beliefs, strongly rejected that theory. In many states, the idea of ​​the divine origin of the law has led to the fact that «the emperor has become the only source of grace». All of this eventually led to arbitrariness, excesses. 6. Founders of Marxist theory of the origin of law Marx, Engels, Lenin considered purely from the right class positions as made into a law will of the ruling class. 7. Historical Law School was based on the premise that the right is due to the development of the national spirit. Its ideological G. Puhta, F. Savini and others argued that the duty of the legislator is to find socalled «final» rights. Questions for the self-control: 1. What means the «mononorms»? 2. What functions has fulfilled the law in the ancient time? 3. What is the difference between the law and moral norms? 4. Which theories of the creation of law do you know? 5. What means the «broad» understanding of law? Task for srs: Please, make the conspectus of the research work of J.-J. Russo «The discussion of the creation and basis of inequality between the people».

CHAPTER 4

Summary of state

1. The state as a political, structural and territorial organization of class society. 2. Formational and civilizational approaches to the typology of the state. 3. Class and overall social approach to the essence of the state.

1. State as political, structural and territorial organization of class society. The state is an organization of political power, which strongly contributes to the implementation of specific interests within a given territory. It is necessary to take into account two aspects: the formal aspect, when a State is an organization of political power, and the content aspect, i.e. whose interests are served this organization. However, any state is engaged in public affairs, and protects the public interest (e.g., crime, epidemics, and natural disasters). It serves the community as whole and certain social forces. This ratio in different periods of history is different. The authors of one of the books on theory of law wrote: «The State is the organization of the political power needed to perform a purely class objectives and general affairs arising from the nature of all of society». Here is a more detailed definition of the state: «The state is a special organization of the public, the political power of the ruling class (social group), the block of class forces, all the people), which has a special device control and coercion, representing society, administers this society and ensure its integration». Other authors note that «the state is the political-territorial, sovereign organization of social control, consisting of a special apparatus, ensured through legal mandate originally interests of the ruling class, and as smooth of class contradictions carrying on a legal basis, all wider general social functions (constitutional state)». The above definitions can be

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Theory of state and law

grouped under the general name of «political and legal understanding of the state». The so-called «sociological» definition of the state is as follows: «The state is not only and not so much a special apparatus of social control, as an organization, integrating socially differentiated society to maintain its existence and ensure the best possible future development». Sociological definition of the state held a famous Russian lawyer N.M. Korkunov. He stressed: «The state is a social union of free people to enforce the established order of peace by providing exclusive rights enforcement only of the State». In another work N.M. Korkunov said: «The real feature of the State is that it is one to be undertaken by the coercive power. The government is like a monopoly of coercion. The state can be defined as a social union, represents an independent recognized forcible dominion over a free people». Modern democratic state is, first of all, the whole society is a means of resolving social conflicts and means of achieving social cohesion. 2. Formational and civilizational approaches to the typology of the state. Typology of the state is its specific classification, which is conducted from the perspective of two approaches: the formation and civilization. Under the type of State shall be deemed made in the unity of the most common features of different states, the system of their most important properties and the parties. The classification of types, according to the formation approach, based on the following criteria: the presence (absence) of private property, the presence (absence) of opposing classes, the presence (absence) of commodity production. It identifies different macro-formations: primary (archaic), i.e. primitive communal system and the secondary (economic), slaveholding, feudal and bourgeois formation. Formational approach of the state is classified as belonging to a particular socio-economic system. Socioeconomic formations, in turn, are classified according to the method of production, i.e. combination of productive forces and relations of production. Historically, people identify five types of formations: primitive, slave-owning, feudal, bourgeois, socialist (communist). Civilizational approach to the typology of state correlates socioeconomic system with the spiritual and moral, and cultural factors of social development. Civilization is a socio-cultural system, which includes the social and economic conditions of society, ethnic and religious backgrounds. In essence, a civilization is the level of social development. This takes into account not only economic, but also other factors: educational, ethnic, religious, cultural, geographical.

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Representatives are Toynbee, Spengler, P. Sorokin. They explain the history of mankind as the history of distinctive civilizations, each of which is in the development stages of formation, flowering and death. Distinguish between Western and Eastern civilizations: Egyptian, Chinese, Iranian, Syrian, Mexican, Far Eastern, Arabic, Orthodox and Western Christian, Eastern Christian, Muslim, Buddhist civilization. Type of state is determined by the type of civilization. In respect of the state and the individual are the following types of: traditional, in which the people are the source of power, the state’s power is not limited and temporary (constitutional), when people are the source of power, the state’s power is limited by the Constitution, the State recognizes and guarantees the rights and freedoms of the individual. The main difference between the civilizational and the formational approaches is the ability to study the state and the rights of man in the light of representations of the values and ​​ purposes of its activities. Toynbee in his «Study of History» substantiated the idea that the cultural element is the «soul, blood, lymph, and the essence of civilization». He singled in the history of the world 21 civilizations. 3. Class and overall social approach to the essence of the state. Essence of the state is the main purpose of the state, the main core of this phenomenon. Essence of the state determines its content, purpose, function, i.e. power in the state and its identity. There are the following approaches to the study of the essence of the state: the class, where the state is defined as the political organization of the economically dominant class and the general social, the state acts organization of political power, which creates the conditions for a compromise of interests of different classes and social groups. Class nature of the state means that a public authority, it is when the previous governments in the tribal system ceases to perform management functions. Socially stratified society, and the power, previously owned by all its members, takes on a political character and is, above all, in the interests of the privileged social groups and classes. Thus, the class nature of the state is reflected in the fact that it always exercises power in the interests of the privileged part of society. However, the state is obliged to take care not only of the propertied classes, but also on society as a whole. Since society is a single organism, respectively propertied classes can not exist without the dispossessed, without exploited groups, i.e. any State shall exercise general social functions and to act in the public interest. This is the

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Theory of state and law

general social nature of the state. Any state is not only a tool of oppression, domination machine of a class or social group, but also a means of uniting the whole of society, the way of integration. In the state are always combined narrow class or group interests of the ruling elite and the interests of the whole society. The ratio of these two essential aspects of the state in different historical conditions differently, gain of one party leads to a weakening of the other. In the classic form of the class nature of the state is shown in the slave state where the slave is not a legal entity, and the object of the right, the thing owned slave. With the development of society from slavery to feudalism and capitalism has come to play an important role of general social side of the state. Particularly apparent general social nature of the state is manifested in modern Western society, such as high taxes on income entrepreneurs, government regulation of working conditions, the development of a wide variety of social programs. The increase in general social role of the state leads to a great extent to mitigate social conflicts, reduced need for measures to suppress class enemies increases the stability of society. Modern developed countries seek to increase the general social side for the stability of society. They also highlighted the religious, national and racial approaches to the essence of the state, when dominated by certain interests in the politics of any country. After all, the essence of the state has many aspects and is not limited to class and general social principles. Entity acts as a philosophical category. Entity – is central to the subject, what characterizes it throughout its existence. Any State engaged in public affairs, the defense of public interest (e.g., crime, epidemics, natural disasters, etc.). Any State shall be: 1) the general public, and 2) certain social forces. This ratio in different periods of history is different. Modern democratic state is, first of all, the whole society. It is a means resolving social conflicts and means of achieving social cohesion. Nature of the state – is the main purpose of the state, the main core of this phenomenon. Essence of the state determines its content, purpose, function, i.e. power in the state and its identity. States define the essence of the class structure of society, the rule of various classes in the system of social relations, and therefore, the establishment of a state as an instrument of domination. As is known, in an exploitative society nature of the state is due, above all, antagonistic contradictions between the economically dominant and

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exploited classes. Popular definition of the State, taken from the works of Lenin: «The state is a special organization of force, an organization of violence for the suppression of some class», or «The state is a machine for maintaining the rule of one class over another». Thus, the essence of the defining characteristic of any acts without exception object, process or phenomenon and is associated with its purpose and the ability to meet the particular needs of man. Essence of the state lies in its social purpose, the regulation of social relations. The value of a state is its ability to guide social development. Questions for the self-control: 1. What means the «summary of the state»? 2. How the representatives of Marxism have defined the «dictatorship of the proletariat»? 3. What means the «state government»? 4. What means the «social state»? 5. Account the well-known types of the civilizations. Task for srs: Please, analyze the research work of V.I. Lenin «The state and the revolution».

CHAPTER 5

Form (unit) of state

1. Notion of form (unit) of the state. 2. The form of government, national and state and administrative-territorial structure, political and legal regime.

1. Notion of form (unit) of the state. The form of state means the totality of the state of essential aspects, methods of organization, equipment and exercise of public authority, which express its essence. That is a way of organizing political power, including the form of government, national, state and administrative-territorial division of the political and legal regime. Category «form of government» responds to the question of who and how the rules in the society, the functioning of state-government agencies. Known legal scholars, Doctor of Law, Professor M.I. Abdulaev and S.A. Komarov state: «Traditionally, under the form of government should understand the organization of political power in the state, taken in the unity of its three main elements (or parties): forms of government and political system. Further, under the form of government we have in mind the organization of the supreme power of the state, characterized by its source, the state of relations with each other and with the public. The form of government means the administrative and territorial organization of the state apparatus, the ratio of state and territorial parts of their bodies to the state as a whole. The political regime is understood a concrete manifestation of the state organization, reflected in the state and nature of democracy and political freedom in the country, or a combination of techniques and methods of the dictatorship of the political forces in power. It’s also suggested to add to these four elements, the «political dynamics»,

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reflecting the changes in the form of government, form of government and the political regime». However, this approach meets the objections and individual researchers. So, L.P. Rozhkova notes: «Almost a political regime can be realized only in a certain rule and form of government, without which it cannot exist». It is well known that the content characteristics of any state are territory, population, and power. But they are significantly different from each other on the specifics of its internal organization, which is expressed in the concept of «form of government». In the theory of law are frequently used category of «substance» and «form». The essence is the main purpose, the basic property of any phenomenon. A form of the categories expresses the device structure of the phenomenon and its external design, appearance. Through the form is the essence of an object or phenomenon. If the category is «the essence of the State» means, what is the main purpose, the goal, in the natural state, then the concept of «form of government» determines who and how rules in society, how to construct and operate its publicpower structure, as in the combined population the area, how it is connected through various territorial and political education with the state as a whole, by what methods and techniques are political power, what is the legal status of the individual in society, what is the scope of their rights and freedoms. From the form of the state is highly dependent political life itself in society, the sustainability of public institutions. Various factors, such as socio-economic, natural, climatic, ethnic, historical, religious, and cultural have a direct effect on the shape of the state. Thus, the shape of the state is an organization of state power, expressed in the form of government, in the form of government in the form of political (state) regime. 2. The form of government, national and state and administrativeterritorial structure, political and legal regime. The structure of the form of the state is characterized by the following three elements: the form of government, national, state and administrative-territorial structure, political and legal regime. Government – an organization of supreme bodies of state power, their structure, procedure, the distribution of competences and relations with the public. Prof. S.A. Komarov determines the form of government as a set of methods of organization of state power. Doctor of Law, Professor A.S. Pigolkin emphasizes that «the form of government, determines the structure

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and powers of the supreme bodies of state power, the order of their formation and relationship to each other, the degree of participation in the formation of these bodies and their influence on the decisions they make». There are two main forms of government: 1. The monarchy is a form of government in which the supreme power is vested in one person receiving this power is usually inherited. Monarchical form of government is very diverse, so much so that on each of these attributes can be found exception. Because of this, many of monarchies do not fully meet the proposed definition. The monarchy is of three types: a) unlimited (absolute) monarchy. The main feature of the absolute monarchy is the concentration of all power in the hands of the monarch. In this case, the legal restrictions on the powers of the monarch do not exist. Absolute monarchies are most typical traditional states with different varieties of authoritarian political regime. As we know, the first state in the land was in the form of government absolute monarchies. This form of government had so-called Oriental despotism, the state in Western Europe in the early and late feudalism. b) limited monarchy (the title of this form of government speaks for itself), when the power of the monarch legally restricted, as a rule, law, and the existence of a representative body. Here we can talk about the implementation of a more or less of the principle of separation of powers. c) the dual monarchy, an intermediate option between absolute and parliamentary monarchies, the original form of a limited monarchy. Is a form of government in which already more or less held the principle of separation of powers: the monarch is the executive branch and the legislative vested in parliament. 2. Republic (in Latin-public matter) – is a form of government in which the supreme power in the State, the elected bodies. Republics, as monarchies, abound. Among the many varieties of them, however, it’s possible to identify the main and the most characteristic features of a republican form of government. Source of power in the country is the people that after a certain period of time elected supreme representative bodies of the state. This reflects the sovereignty of the people is one of the fundamental principles of a modern democratic state. a) In a parliamentary republic strong legislature and the executive is subject to it. This form of government is characterized by the

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rule of Parliament to legislate. The government is formed by the Parliament and responsible to it. b) A presidential republic. This form of government is characterized by the fact that the President was in the government are very significant place. So sometimes it is similar to the monarchies called dualistic Republic, as in it there are two main centers of power, the parliament and the president. In a presidential republic legislative power belongs to the highest representative body, the Parliament, which makes the laws, and the executive and the government. However, the Parliament does not form the executive branch; the latter shall not be responsible to it. Known textbook authors, recognized as one of the best in the CIS on the theory of state and law, Doctor of Law, Professor V.V. Lazarev, S.V. Lipen and A.H. Saidov: «The advantages of a presidential republic include a sufficiently high degree of efficiency of the state management of society: for the president, with a broad mandate, largely determines the policy of the state. Management acts more directly if it comes from a single center. It is especially important during periods of good governance reforms, major social transformations, and the country’s crisis». The Republic has the following legal properties limit the power of the head of state, legislative and executive bodies of state specific term, the election of the head of state and other sovereign governments, heads of state responsibility in cases provided by law office the Head of State of the State in international relations on behalf of the voters, bound decisions of the supreme state authority for all other state agencies, the protection of citizens’ interests, mutual responsibility of the individual and the state. Some legal scholars perceive the advantages of a parliamentary republic, «with greater guarantees of reality in public administration society began democracy, because of the state of no sole body with a broad remit». The form of government – is the political-territorial division of the state, the relationship between central and local authorities. Unitary state (from the Latin word «unus» – one) – is a single state, parts of which do not have the attributes of statehood. The unitary states are, for example, the Republic of Belarus, the Republic of Kazakhstan. A unitary state is divided into administrative units. They do not have political autonomy, but in the economic, social and cultural fields may exercise considerable competence to control the territory in view of its features. Federation (from the Latin word «foedus» – Union)

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is a complex state, parts of which have the attributes of statehood. Confederation (translated from the Latin word «community») is association of states to deal with any political, military, economic and social objectives. Subjects of confederation retain sovereignty in almost full. They continue to have their own state agencies, citizenship, territory, its own constitution and laws, their sources of income. Federation can be formed or by agreement between the previously independent states, or by joining the State territories while preserving their particular political independence, or because of the development aspirations for statehood in the administrative-territorial units or autonomous unitary states. Today in the world there are 24 federations: Austria, Germany, Russia, India, Malaysia, Nigeria, Tanzania, USA, Canada, Mexico, Argentina, Brazil, Australia, etc. Commonwealth is an association of states which characterized some uniformity. Some jurists consider this community form an even more amorphous and uncertain than Confederation (A.V. Malko, V.A. Chetvernin). Community of nations – is a form in which basis the interstate agreement. This point of view is shared by V.V. Luzin. Form of political (state) regime is a set of methods and techniques for the implementation of the government, as well as the level of political freedom in society and the nature of the legal status of the individual in society. The political regime is democratic and anti-democratic (autarkic). Even under a democratic rights and freedoms are protected and guaranteed. Power is realized for the benefit of individuals and society. Democratic regime types: slave-owning democracy (the aristocracy, democracy), the feudal democracy, bourgeois democracy, socialist democracy. When anti-democratic regime in power in the hands of the reaction and is dictatorial methods. Signs of a democratic regime: a) the existence of guaranteed rights and freedoms; b) the proper functioning of representative institutions; c) the election and turnover of central and local government bodies, and their accountability to voters, transparency and control of the population for political decision-making; d) separation of powers; e) the restriction of state violence predominantly area of deviant ​​ behavior of citizens;

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f) political pluralism, free activity of opposition political parties; g) the existence and development of civil society; h) is dominated by persuasion, negotiation, compromise. Undemocratic regimes characterized by the following features or characteristics: a) lack, limitation, to minimize or eliminate any were civil rights and liberties; b) the absence of the restriction or elimination of the representative bodies of the state; c) the lack of control on the part of the population for the exercise of power, the formation of its institutions through private channels; d) the concentration of all power in the hands of one person (monarch, dictator), several persons or a body; e) rigid command-and-control, and sometimes the terrorist methods of the government, tyranny, violence; f) lack, limitation or elimination of the progressive political parties and public associations; g) the domination of one ideology; h) the absence or limitation of civil society, the scope of free expression of interest. In legal literature, «according to the proposed criteria are three basic forms of state: polycratic, monocratic («autocratic») and segmental, which occupies an intermediate position between them. Each of them can have a republican and monarchical form of government, unitary and federal territorial and political unit, a different state regime». Questions for the self-control: 1. What means the «political regime»? 2. What are the peculiarities of the authoritarian regime? 3. What are the differences between the democratic and non-democratic regime? 4. What is the difference between the community of the states and common wealth of the states? 5. What the principle of the federation? Task for srs: Please, explain the different forms of the state.

CHAPTER 6

Functions of the state

1. Concept and content of state functions. 2. Classification of the functions of the state.

1. Concept and content of state functions. Functions of the state – are the main areas of activity to address the challenges ahead. According to the authoritative opinion of Doctor of Law, Professor M.N. Marchenko, «the question of the functions of the state has not only theoretical but also practical. It allows you to not only look at the state by its shape, internal structure and content, but also to consider it from the perspective of his future work, functioning. With the functions possible with sufficient accuracy to determine the nature of the state, the correct choice of them at some stages of its development priorities, finally, the level of organization and efficiency». Functions of the state are changing and unchanged, they are dynamic and subject to change and are due to both the class and its general social essence and social purpose. It should be borne in mind that the concept of a function of the state is not the same as the goals and objectives of the state, the functions of its organs. In this case, the state is to build civil society, the creation of conditions for a dignified life and free development of the individual. The objectives are the same state support of the transition to a market economy, guaranteeing freedom of entrepreneurship and free competition, the creation of conditions for the realization of each right to own, political reform in the public interest for the further democratization of the political system. In legal literature, there are dozens of definitions of various state functions. Here are some of them. «The function of the State is a

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necessary, uniform, constant, purposeful direction (side) of its activity due to the objective requirements of social development in terms of its internal and external problems». It has been argued that «the main function of the State can not be considered the economic and administrative activity, for it leads to the inevitable nationalization of public life, and, as such, in a civilized society can and should be protecting people’s interests and the protection of his rights. According to the authoritative opinion of the leading jurists of the CIS countries, «state functions, this concept is not only a political and management, but at the same time, and legal, as they are carried out mainly in the legal forms. The content of each function of the state administrative activity lies in a particular area of ​​public life. The specificity of this activity is determined by the specific tasks that confront the society at each historical stage. Content and meaning of the state’s functions are changed during its development». Functions of the state are classified for the following reasons: the scope of the (object impact) – there are different internal and external functions, the duration of action, both permanent and temporary functions, the social significance (general and specific functions). In the legal literature, there are other classifications of state functions. So, in the book «General Theory of Law and State», edited V.V. Lazarev there stand «four main functions, which are implemented by any state – economic, political, social and ideological. Other scientists are three main functions – legislative, executive and judicial powers, which correspond to the three main branches of government – legislative, executive and judicial (sometimes identified fourth function and the corresponding branch of government – the oversight)». Doctor of Law, Professor M.I. Abdulaev and S.A. Komarov call attention to the fact that «the functions of the State for this activity, but the activity itself. Activities to implement the functions filled with concrete historical content, and in the implementation of the sum of their specific ratio (the proportion of the significance of each function in the system of the other)». 2. Classification of the functions of the state. There is the following classification of functions of government. Reasons of state: deriving from the class contradictions arising from the needs of society. 1. Interior: a) protecting the rights and freedoms of man and citizen; b) protection of ownership;

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c) to ensure law and order; g) environmental; e) economic; e) social; g) the development of scientific and technological progress; h) taxation; i) cultural and educational. 2. Exterior: a) conduct wars of aggression; b) protection of the country from foreign attack, the defense of the country; c) the maintenance of peace; d) fair trade; d) the decision together with other States the world’s problems. 3. For the duration of the action: a) Permanent, carried out at all stages of development of the state; b) The time shall cease to solve a particular problem, as a rule, which has extraordinary. 4. Least: a) basic; b) non-core. According to the Candidate of Science, Associate Professor D.A. Bulgakova, «the forms of the functions of the state – is a uniform activity of the state, serves as the implementation of its functions». Doctor of Law, Professor M.I. Baytin notes, «Because the scope of state activity varied as public relations, for the theory of the state was a problem to determine the main directions of its internal and external operations, which are expressed and specified its class and a common human nature and social purpose». «In the current conditions of the formation of law humanities raised again the question of the relationship between state and society. The process of development of the state shows that the further democratization of society in the state of law should promote the development of civil society. In this connection, the functional role of the state and is limited by its direct interference in social relations and individual citizens’ lives. Patterns of development of the state and society are to update the content features and removal of several functions, i.e. lead to a revision of the entire functional activity of the state, and, consequently, the functional role of the society».

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The form of the functions of the state is a homogeneous activity of the state, serves as the implementation of its functions. There distinguish legal and organizational forms. We join in the common in the legal literature classification. The legal forms include: a) law-making – an activity to prepare and publish regulations; b) enforcement – activities for the implementation of regulations by adopting the acts of law, the daily work on the implementation of laws and solve various managerial issues; c) Law Enforcement – activities for the protection of the rights and freedoms of man and citizen, to prevent crime and to bring to justice those responsible for legal persons, etc. The organizational forms include: a) organizational and regulatory – is the ongoing work of certain structures to ensure the functioning of the State related to the preparation of draft documents, the organization of elections and the like; b) organizational and business – is operational, technical and economic work related to accounting, statistics, supplies, etc.; c) organizational and ideological – an everyday educational work on ideological enforcement of various state functions associated with an explanation of the newly issued regulations, public opi-nion, etc. «In the historical development of state-legal situation, you should talk about the functions of the state as a public regulatory body in relation to civil society, more precisely, to the community of individuals, social groups, associations and organizations in civil society. This approach to the functions of the state assumes the distinction of civil society and the state». At the heart of the original functions of the city-state, said A.B. Vengerov pertained function information Services Company, due to the necessity to take into account the need for «extended family» of free farming communes. Obviously, the division of labor between state and society actually exists. E. Durkheim in his work «On the division of social labor» emphasizes: «The division of labor (functions) do not alienate both specialized units (in this case, the state and society), who were in for the duration of this division in constant communication, and the function of solidarity (mechanical or social)» The authors of the collective work «Functions of the state in the modern world», say: «The functions of the state are complex and

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their formation is in the making, strengthening and development of the state. Furthermore, the functional activity of the state is to foster and promote the development of the state and society. Therefore, in our view, from the point of separation of functions between the state and society should be divided into two groups of state functions: mandatory functions of the state and functions required of the state. Mandatory functions of the state are: 1. protection of the territorial space of the state; 2. to international cooperation; 3. organization of public authorities; 4. budget control, law enforcement. These functions are identified in the mandatory, because their performance falls only on public authorities. Furthermore, they emphasize: «The functions are included in the group of functions that the state, these are functions that the state can do, with the participation of society, or rather, the structural elements of the social system. Essential functions of the state are: 1. Implementation of legislative activity (in Parliament are the representatives of political parties, administrative units of the state); 2. Organization of the system and the structure of government; 3. Social function, which includes the social protection of citizens, social development of the country (the state together with public organizations implementing this feature); 4. Promotion of economic development of the country (in a market economy system state monopoly is replaced by participation in the implementation of this function as non-governmental organizations). Questions for the self-control: 1. What means the «functions of the state»? 2. What are the main functions of the state? 3. Please, account the legal forms of the functions of the state. 4. What means the «organizational form of the functions of the state»? 5. Please, give the classification of the functions of the state. Task for srs: Please, discuss the main functions of the modern state.

CHAPTER 7

Mechanism of the state

1. The mechanism of the state as a means of implementing policy. 2. The principle of separation of powers enshrined in the Constitutions of advanced countries.

1. The mechanism of the state as a means of implementing policy. In legal literature, the terms «mechanism of the state» and «state apparatus» are usually used as synonyms. The mechanism of the state is a series of government agencies, which is realized by the state government and the state leadership provided by society. The state apparatus is a system of government, the general principles of inter-related organizations and activities. We list these principles: the priority of the rights and freedoms of citizens, democracy, separation of powers, rule of law, transparency, federalism, and professionalism. Thus, the state apparatus is a part of the machinery of the state, which is a set of public bodies with powers to implement government. The state apparatus consists of the following bodies: the legislature, the Parliament (Senate and the Majilis), President of the Republic of Kazakhstan, the executive authorities, the Government (Prime Minister, Deputy Prime Ministers), the judiciary (Supreme Court of the Republic of Kazakhstan and local courts), and prosecutors. The concept of the mechanism of the state consists of the following components: state agencies, the state apparatus, and state enterprises. The mechanism of the state is a system of government designed to perform the tasks and functions of the state. The public agency is a member of the state apparatus, participating in the exercise of the functions of the state and empowerment. The public agency has the following features: it is a separate element of the

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mechanism of the state, founded and operates on the basis of legal acts, peculiar only to perform the tasks and functions vested with authority, and has the appropriate structure, facilities and funds. Public authorities perform the tasks and functions on behalf of the State, have a certain competence, have authority, characterized by a certain structure, have a territorial scope of activities formed in the manner prescribed by law, and set out the legal context of the personnel. The form of the implementation of the state government authorities classifies as representative, executive and administrative, judicial, prosecutorial and other enforcement authorities, by the principle of separation of powers; legislative, executive, judicial, by the hierarchy; national and local, by the implementation level; permanent and temporary, by the terms of office; collegial and one-man management, by the order of competency implementation; legislative, law enforcement and law enforcement, by the legal forms of activity; the organs of the general and special jurisdiction, by the nature of competence. There are the following legal forms of activity: legislative, executive, police, and administrative control. Structure of the mechanism of the state includes state agencies, government agencies and businesses, government officials, and the organizational and financial resources, as well as forces needed to support the activities of states. Prof. V.V. Lazarev notes that «the mechanism of functioning of the state means the whole set of internal factors, institutes, providing the action parts of the state in their interdependence». It should be noted that the authorities are in close communication and co-ordination of the implementation of its immediate power functions. Government agencies and enterprises of power do not have (except for administration), and perform general social function in the economy, education, health, culture, science and sports. Civil servants represent a category of people who are engaged exclusively in the management. We have already noted that the basic structural unit of the mechanism of the state is the state agency. Government body is an element of the state mechanism involved in carrying out the functions of the state and endowed with this authority. State authority is composed of civil servants, who are a special type of public officials.

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State authority has the powers that express: – the ability to issue binding regulations; – enforcement of acts of state and methods. State machine implements the functions of the state. The state apparatus is a hierarchical system of government. Some researchers consider the state as a mechanism of activity of state and believe that the state apparatus is the order of formation of government. Other researchers have suggested that the state mechanism includes the system of state institutions, besides the state apparatus, because they are also involved in the implementation of state functions. Bureaucracy is the full-time part of the state apparatus (as opposed to an urgent, elective). Mechanism of the state is public authorities which have the following features: 1) have a public authority: a) on the adoption of binding decisions; b) on the application of measures of state coercion; 2) are formed in the manner prescribed by law; 3) act to the extent permitted their competence; 4) the scope of their competence exhaustively described in the law; 5) have a fixed structure. Classification of state structures: By the branches of power: a) legal; b) executive; c) legal; d) monitoring and oversight. On the territory: a) central; b) regional. In the order form: a) elected by the people; b) appointed by the President. By the universality of competence: a) general competence; b) special (business) competence. By way of decision-making: a) alone; b) peer.

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Professors M.I. Abdullaev and S.A. Komarov claim that «the mechanism of the state is a system of public institutions through which state power is realized, provided the state leadership of the society. Mechanism of the state is defined by its essence. This necessary connection can be described as a relation of cause and effect, which is mediated by the influence of the form of the state». Doctor of Law, Professor A.S. Ibraeva emphasizes: «The state apparatus includes only specially created for the management of the public authorities, while the mechanism of the State is a system of government and activities of the state to pursue its objectives and functions. Mechanism of the state represents the state as a whole, its real materialized incarnation, and its «flesh and blood». Out and no state mechanism is not and cannot be the state». List the principles of organization and operation of the state apparatus: 1. the separation of powers; 2. the principle of the rule of law; 3. the principle of democracy; 4. the principle of transparency; 5. the principle of centralism; 6. the principle of humanity; 7. the principle of national equality. 2. The principle of separation of powers is enshrined in the Constitution of advanced countries. According to the principle of separation of powers, all power can not belong to one person or entity. This leads to the abuse of power. Therefore, you must power-sharing powers between the various bodies. Sharing power is held horizontally between the legislative, executive, judicial and supervisory control. Each of these branches is independent, independent in performing its duties to other authorities, separately organized. The relationship between the individual branches is regulated by a system of checks and balances and cooperation. Vertical division of power is in the unitary states between central and local, and federal – between the federal government and the government of the Federation. The main requirement of the principle of separation of powers, which has been formulated by John Locke and Charles-Louis Montesquieu, is the assertion of political freedom, the rule of law and ensuring the elimination of abuses of power by all social groups, institutions or individuals. All power in the state is divided into legislative, executive and judicial. Legislative power is elected by the people and the strategy for the development of society through laws. The executive power shall be representative and engaged in the implementation of laws and operational and business activities. The judiciary is the guarantor of

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redress and just punishment of those responsible. It is very important to have a flexible system of «checks and balances». The system of «checks and balances» means the combination of legal restrictions on the particular government: legislative, executive and judicial. An important role in the system of checks and balances on the legislative power is played by the head of state who has the right to apply the suspense veto on laws passed by Parliament. For the executive power there are widely used restrictions of departmental rulemaking and delegated legislation (terms of presidential power, impeachment vote of confidence in the government.) As for the judiciary, there are constitutional means, procedural law, the presumption of innocence, equality before the law and the courts, the right to legal defense, transparency and competition process. The main purpose of the separation of powers is the creation of effective mechanisms and institutions that would prevent excessive concentration of political power in the hands of a public authority to the detriment of others. However, for this simple formulation is a long historical period, during which this principle as a principle of law was sufficiently developed in theory and found practical expression in the individual countries. It was a long and difficult road, and this principle has emerged as a response to the challenges of absolutism, when power was concentrated in the same hands, and where this power sometimes used as a mechanism in no sectarian violence. For a democratic society the principle of separation of powers is particularly important and significant. It expresses not only a division of labor between the public authorities, but also moderation, dispersal of state power, it warns its concentration, its transformation into an authoritarian and totalitarian power. This principle in a democratic society requires that all three of equal power should be equal to the force as counter to each other and can inhibit one another, to avoid the domination of one of them. For example, the transformation of managerial power in an authoritarian and legislative of «omnipotence» totalitarian power, subjugate and control and justice. It is clear that the most democratic constitution, which provides the most extensive rights of the population, the separation of powers, rule of law, etc., becomes a simple declaration, if its implementation is not based advanced, comprehensive, hierarchical structures, consistent legal system.

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Questions for the self-control: 1. What means the «mechanism of the state»? 2. What are the main functions of the state? 3. Please, account the legal forms of the functions of the state. 4. What means the «organizational form of the functions of the state»? 5. Please, give the classification of the functions of the state. Task for srs: Please, discuss the main functions of the state apparatus.

CHAPTER 8

Republic of Kazakhstanindependent sovereign state

1. The collapse of the Soviet Union and Kazakhstan’s gaining its political independence and full sovereignty. 2. Key attributes of the state independence of Kazakhstan.

1. The collapse of the Soviet Union and Kazakhstan’s gaining its political independence and full sovereignty. December 8-9, 1991 in Minsk (in the Bialowieza Forest), the three leaders of the Slavic, Russian President Boris Yeltsin, President L.M. Kravchuk and Chairman of the Supreme Soviet of Belarus S. Shushkevich announced the elimination of the Soviet Union and Formation of the Union of Independent States CIS. Supreme Councils of the Republic approved the decision. 14-15 December 1991 in Alma-Ata happened a meeting of representatives of the eleven heads of state. After a short presentation of the subject by the President of the Republic of Kazakhstan Nursultan Nazarbayev and subsequent speeches, the heads of independent states unanimously adopted the Declaration on the Elimination of the USSR and the formation of the Commonwealth of 11 independent states. This meant the end of all attempts to form a single federal rule of law. The formation of a democratic state was now up to each independent republic. The Republic of Kazakhstan, as well as all the other former Soviet republics and the USSR as a whole, also sells «ready» concept of democratic rule of law in stages. Almost simultaneously with the relevant social democratic movements in the Soviet Union and the Federal Republic in the Republic of Kazakhstan has started ideological

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and theoretical training to realize the intellectuals and people of the necessity and inevitability of building a democratic state of law. The Republic of Kazakhstan was proclaimed as an independent sovereign state on December 16, 1991, which was recorded in the Constitutional Law of the Republic of Kazakhstan «On State Independence». As a sovereign State, the Republic of Kazakhstan has an independent economic system, based on diversity and equality of all forms of ownership, creates its own armed forces. The basic law of the land is the Constitution of the Republic of Kazakhstan adopted by popular referendum on 30 August 1995. On October 7, 1998 by the constitutional law were made nineteen amendments to the current Constitution. In addition, the May 21, 2007 by the constitutional law was introduced significant changes and additions to our Basic Law. This year marks the twenty years of the Declaration «On State sovereignty (independence) of the Kazakh Soviet Socialist Republic», adopted October 25, 1990. This was the final period of the so-called Gorbachev’s perestroika, designed to preserve the old Soviet socialist socio-economic and political system, has long been rotting on root. The task of Gorbachev’s perestroika was some modernization, partial redemption of the system from the most conspicuous of its antidemocratic institutions: introduction multiparty system, the abolition of censorship and, ultimately, the abolition of Article 6 of the Soviet Constitution. Naturally, the restructuring was doomed. The party nomenclature, which stood over the society and the state and operated it, aroused the hatred of the masses, as evidenced by the December 1986 events in Almaty, the opposition to the corrupt nomenclature in Baku, Tbilisi, Vilnius and other cities of the former USSR. And in 1990, the Supreme Council of the Baltic States, and then Russia first declared its sovereign rights, they have adopted in the Declarations. Following Russia and other former Soviet republics, and, including the Kazakh SSR Supreme Soviet adopted its own Declaration of State Sovereignty. Essentially it was a statement of almost complete indepen dence of the republics in solving the fundamental problems of the inner life. The Declaration of the Supreme Soviet of the Kazakh SSR «On State Sovereignty of Kazakh SSR» from October 25, 1990 stated that the laws of the Kazakh SSR take precedence over the laws of the USSR, and this meant that the human and economic policies as well as policies in other areas of public life in the Kazakh SSR will be carried out irrespective of the Union center and, in particular, in the field of international relations.

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A particular point of the Declaration «On State Sovereignty of Kazakh SSR» proclaimed the need for the people of the Republic of Kazakhstan build «a human and democratic state of law». The adoption of the Declaration of Independence was the beginning of a new phase of political and legal history of Kazakhstan; it was a historic turning point in the life of all the peoples of the Republic and is actually related to the change of the socio-economic structure. This is evidenced by the fact that at the top level on behalf of the Parliament of the peoples’ republic officially announced that the state has a rule, autonomy within the country. Furthermore, together with the principles of the national state and the responsibility of the Kazakh nation across the Declaration was the idea of ​​the need to approve all persons, regardless of their nationality or beliefs. In addition, the Declaration envisaged change in the fundamental principles of statebuilding, as officially stated that the state power in the country based on the principle of the separation of legislative, executive and judicial, have equal rights of ownership, political pluralism and a multiparty system, etc. But special mention is the fact that the Declaration has become the basis of the national legislation of the new Constitution, since the formation of the national law is a concrete manifestation of political independence. This was clearly stated in Article 17 of the Declaration, to indicate that the development of the new Constitution, laws governing the status of a sovereign state, should be based on the fundamental principles of the Declaration of State Sovereignty of the Kazakh Republic. In 1991, the Kazakh SSR was renamed to an independent, sovereign Republic of Kazakhstan. 2. Key attributes of the state independence of Kazakhstan. The basic attributes of the state independence of the Republic of Kazakhstan in accordance with Section I «General Provisions», Article 9 are the flag, the anthem and the coat of arms. Normally, this article just recorded: «The Republic of Kazakhstan has state symbols, flag, emblem and anthem. Their description and order of official use shall be established by the Constitution». It is known that every object and every living creature has its own distinctive and unique characters, differences. The main distinguishing mark of our country is the flag. Its author is the artist Shaken Niyazbekov. Flag’s color is blue. In the center of the flag we see floating under the golden sun, eagle, and the edge where the cloth is attached to a pole, a strip of the Kazakh national ornament. The blue color symbolizes the sky. Indeed, in ancient times, our ancestors worshiped the sky; Turks called him Tengri.

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They believed that the sky has created all life on earth and is a symbol of peace and prosperity. Also, people in blue signified honesty, purity and loyalty. It is no accident blue of our national flag symbolizes purity and high thoughts of our people. Golden sun rays of light symbolizes wealth and happiness, it gives people the warmth and life. Eagle, the king of birds, hovers beneath the sun and feels the height of the sky. This freedom-loving bird has always been a symbol of independence, honor and power. Ornament scientists believe the magic code including knowledge about the nature and structure of the world. Coat of Arms of the Republic of Kazakhstan is made by Zhandarbek Malibekov and Shota Valikhanov. The basis of our coat of arms is heart-shanyrak main part of the yurt, the base of the dome-roof. For Kazakhs shanyrak characterizes family home, his home and village. Located at the edges of the coat of arms are the heads of winged horses, unicorns. For Kazakhs horse footed Tulpar, was the second-half. Our ancestors portrayed tulpars cruise and worshiped them as gods. Horned horse was considered a sacred animal. Now he represents undisclosed talents and life-giving power of the young state. The high point of the emblem is a star. Stars were the Kazakh nomads guide the way. Thus, the flag means that Kazakhstan is lifted into the sky reliable shanyrak energy of the people who are building a new state. The National Anthem was written in music Mukan Tulebaev, Eugene Brusilovsky and Latifa Hamidi. Lyricists – Muzaffar Alimbaev, Kadir Myrzaliev, Tumanbai Moldagaliev and Zhadyra Daribaeva. Our national anthem is a solemn song of courage and honor, pride and joy. It is a symbol of where the music and the words express the same meaning, which is implied in the symbolism of the flag and gerb. Questions for the self-control: 1. What the Union of Soviet Socialist Republics was broken? 2. What the main factors of the disintegration of the USSR? 3. Please, account the reasons of the rebellions in Alma-Ata, Vilnus, Tbilisi. 4. What means the special symbols of the sovereign state? 5. Please, tell the date of the adoption of Law «On state independence of the Republic of Kazakhstan». Task for srs: Please, discuss the main positions of the Declaration «On state sovereignty of KazSSR».

CHAPTER 9

Law in the regulation of the public relations

1. The concept of regulatory system of social relations. 2. Definition and classification of social norms. 3. Objective and subjective in law. 4. Regulatory, security, jurisdictional, orienting and incentive functions of law.

1. The concept of regulatory system of social relations. The system of normative regulation of social relations is understood as a set of social norms that govern the behavior of people in society, their relations with each other through associations, groups, governing their relationship with nature. Regulatory system of public relations consists of social norms, including the rule of law, morality, rules of public organizations (corporate rates) and customs, as well as social and technical standards, rules of technical facilities, hygiene standards and agronomic standards. Doctor of Law, Professor M.I. Abdullaev, S.A. Komarov gently remind that the regulatory system is not the one of a juridical (legal) superstructure. Juridical (legal) front-end is a set of legal phenomena, ultimately determine the economic basis of society. The concept of «law» is one of the difficult issues in jurisprudence. For full disclosure of the phenomenon of law it should be noted that law as a social phenomenon and a regulator of social relations appears before the state. Therefore, the term «law» is associated with the words «truth», «justice». And this coincidence is not accidental, since the foundation of law are universal ideas and values ​​of justice, humanity, equality and freedom.

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Law in the broadest sense is the order in a society based on these universal ideas and values ​​provided by the human mind and the coercive power of the state. With the state the right to have found a new feature, and it was expressed in the form of written rules, provided that of the state. In a legal sense, the right – a system of mandatory, formally defined legal standards, guaranteed and sanctioned by the state regulating social relations. Signs of law: a) system, i.e. law consists of linked together in a specific order of norms, rules of conduct; b) the universal validity, i.e. law binding on all subjects, regardless of sex, age, national origin, property, etc.; c) the formal definition, i.e. right is always expressed in some form – in the form of laws and other official acts; d) the relationship with the state; e) a strong-willed character, i.e. the right is always expressed will of society, the state, a particular class; f) regulations, that is, right is lawful and unlawful criterion, proper and possible behavior of the subjects. Regulations also lie in the fact that the state formally establishes the right and ensure its implementation, including through state coercion. Law, being normative expression of public will, regulates public relations in the class, or any other general social interest. Most components of the law are presentable-binding. The legal rules are modeled behavior and possible solutions are given samples of possible cases. Higher social mission of law is to provide, in a statutory order to guarantee freedom in society, to assert, to create optimal conditions for the pre-emptive action in the community economic and spiritual factors, eliminating arbitrariness and self-will of the public life. At law is a great value. Value of the right – is the ability to serve the right and the means to address social justice, progressive needs and interests of citizens, society as a whole. The following main manifestations of the social value of law: – the right to have instrumental value, giving the organization of people’s actions, stability, consistency, and ensures their accountability, thus making the elements of order and order in public relations, making them civilized;

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– the right to have an impact on the behavior and activities of the people by matching their specific interests, i.e. the right not to suppress private interest, but rather, reflect it with the public interest; – the right is the spokesman and determinant of individual freedom in society, this does not mean freedom in general, and defines the boundaries, the measure of this freedom; – the right has the ability to be the expression of the idea of justice, ​​ that is, the right to a criterion of the correct, fair distribution of wealth, according to the equality of all citizens before the law; – the right to a source of renewal of society in accordance with the historical course of social development, especially its value increases after the collapse of the totalitarian regimes and the establishment of new market mechanisms; – legal approaches are the basis and the only possible way to solve the problems of international and inter-ethnic character. Academician, Doctor of Law, prof. S.S. Alekseev notes: «Yet it seems appropriate to propose the concept of value of the law to study and continue his scientific development, but not limited to class positions, as before». The authors of a textbook on the theory of law, Doctor of Law, Professor V.V. Lazarev, M.V. Lipen, and A.H. Saidov are convinced that «for the domestic jurisprudence undeniable and large enough value of the right to the public is an axiom. However, philosophical and legal thought is the direction that did not recognize the right to be an effective regulator of public relations, or, in general, deny its importance in this capacity». Essence of law is to regulate social relations in terms of civilization – to achieve a stable regulatory framework for organization of society under which a democracy, economic freedom, individual liberty. In considering the nature of law is important to consider two aspects: 1) formal – that any law is primarily the regulator; 2) substantial – then whose interests serve this control. The two distinct approaches to the nature of law: – a class in which the right is defined as a system of stateguaranteed legal rules made into a law expressing the will of the state economically dominant class; general social – in which the right is seen as an expression of a compromise between the classes, groups, different social groups in society.

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«The essence of law is expressed in its class. Right-class regulator of public relations, the class has a powerful force. By its nature it is made into a law will of the ruling class, the content of which is determined by the material conditions of his life. Class nature of law is evident not only in the fact that in a society with antagonistic classes is used as an instrument of class rule, but also in that it simultaneously acts as a tool for general social regulation, as the state is involved in the implementation of the common cases arising from the nature of any society» – wrote a quarter of a century ago prof. S.S. Alekseev. «The essence of law is seen as security or division of the vital interests of people, the expression of their will to set a certain order of social life», – emphasizes prof. V.N. Hropanyuk. There is a more detailed definition of the nature of law. «The essence of the right is the main, internal, relatively stable quality based on the rules that reflect its true nature and purpose in society... So, the essence of the right is due to the material, social and cultural conditions of the society, nature classes, social groups, individuals , the general will as a result of harmonization, a combination of private or special interests, by statute or otherwise recognized by the state and serving as a result of this general (general social) scale, a measure (control of behavior and activities of people». Brilliant writing team known jurists CIS summarizes: «The essence, the most important, defining feature, the property of all that a man-made, is to values, needs, at the destination of the object or phenomenon in human society. Therefore the essence of law, as the essence of the state, is in its social purpose, in the regulation of social relations in the organization of social control». 2. Definition and classification of social norms. Social norms mean a collection of law, morals, norms of public organizations (corporate standards) and customs. The following classification of the social base of norms on how to establish and ensure the norm of law, morality, customs, corporate standards, the content of the scope of regulated relations, political, organizational, ethical and aesthetic, by way of education, spontaneity and consciousness, on how to consolidate and -expression and interpretation. Law and morality have some common features: they are built on top of the economic base, have a normative content, are the regulators of public relations, based on the common social and economic interests, are realized in most cases voluntarily, the guarantor of the implementation of the internal-conscience.

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The distinctive features of law and morality are right there along with the state, and morality arises earlier state, the right is made up of rules (rules of conduct), and morality is more complex, and the right is characterized by specified and defined, and morality is characterized by a large content, the right provided possibility of state coercion, and morality is provided habit or force of public opinion, the right to preregulated policies and forms of coercion, and in the form of moral and enforcement are not regulated in advance, the right to prescribe a comprehensive assessment of the behavior of the offender only, and morality is assessed comprehensively any human behavior. Under the corporate norm (NGOs) are understood the rules of conduct contained in the statutes, regulations, decisions, public organizations, for the purposes of operation. The common features of the law and corporate standards are that they contain clear and specific rules of conduct, laid down in special regulations, norms codified. The distinctive features of the law and corporate standards are: the degree of support, forms of coercion; priority law. Under customary rules of behavior are understood, folding in a specific social environment, passed on from generation to generation, projecting natural necessity of life of people and as a result of frequent repetition become familiar to them. 3. Objective and subjective in law. Necessary to distinguish between the objective and subjective right to the right. Objective law – a system of mandatory, formally defined legal standards established and provided by the government for the settlement of public relations. Objective law – a law, legal practices, case law and regulatory instruments of the period in a particular state. It is objectively in the sense that does not directly depend on the will and consciousness of the individual and not his. Subjective law – a measure legally possible behavior, designed to meet the person’s own interests. Subjective rights are the specific human rights (right to work, education, etc.), which are subjective in the sense that relate to an individual to belong to him and dependent on his will and consciousness. The famous Russian lawyer N.M. Korkunov said: «The existence of law is not just the existence of legal rules, but also the existence of a legal relationship. Legal norms and legal relationship are two different sides of the right: objective and subjective. Legal relationship called right in the subjective sense, because the right and duty to make

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membership of the subject. Without a subject, they can not exist: the right and the duty must necessarily be someone’s. On the contrary, there are no legal provisions in this regard to the subject. They have a more general and abstract nature, they are not confined to a particular subject, and because, in contrast to the legal relationship is called a right in an objective way». Along with the right to a legal sense (objective and subjective), there is also a natural law, which covers, for example, the rights as the right to life, the right to liberty. Rights relating to the natural, there is no matter, they are fixed somewhere or not they are directly derived from the natural order of things, from life itself. In contrast to the natural law, the law in a legal sense (objective and subjective) is seen as a positive right, i.e. expressed in laws and other sources. Characteristic features of the positive law: a) it is created by people, or public education – legislators, the courts, by the subjects of the law, that is, is the result of their work, targeted volitional activity; b) it is in the form of laws and other sources, i.e. particular, the outward expression of reality, not just in the form of thoughts, ideas. «Legal standards, as expressed in customs, case law, legislation, norms of positive law, is opposed to freely develop a subjective sense of justice ... The positive law is only one element of public culture, and the whole culture in general, presenting the legacy of the past, the product has already gone through, can never replace them, and destroy the subjective sense of justice, called and sent directly to the needs of everyday life, and therefore condition the vital importance and the further development of the positive law». Since the creation of the right and in the course of its development were revealed its two contradictory and simultaneously parties. First party is public law, the second is a private law. Public law – an area of public ​​ affairs, that is, the structure and activities of the state as a public authority, all public institutions, built on the principles of power and domination, on the relationship of subordination. Public law includes such areas of law as constitutional, criminal, administrative, procedural, financial law, etc. Private law – an area of ​​private affairs, that is, the status of a free person, institution, built on the principles of autonomy, the legal

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equality of the subjects, and not hierarchy. The private law includes civil law, family law and some others Construction of the rule of law and development of civil society are brought to one of the first places in the subordination of social factors of law and legal phenomena; put a secondary position the role assigned them by Marxist theory and practice of «socialist» totalitarianism with their allegations of imminent «withering away» of the right together with the state of the legal values ​​as «the faculty of unnecessary things», which, it was assumed the victorious proletariat will throw the dustbin of history, along with other museum archaic. First, from the point of view of Marxism, society has been analyzed as consisting of four major structures (systems) – the economic sphere of society, its social structure, the political organization of society and its spiritual life. In this case, the legal sphere of public life denied self the existence and functioning, it is included in the political organization of society; the law was, in fact, only an instrument of state policy. This provision is based on Lenin’s well-known allegations that the law is a political measure, the law is politics. Such significant and very significant legal phenomena as legal awareness and legal culture, in the view of economic and materialistic monism, related only to the spiritual sphere of public life, slave, and mostly economic, social and political factors. In the new socio-economic, spiritual, cultural, political and legal realities in all the post-totalitarian countries under pressure to not only qualitative renewal of the legislative and judicial spheres of public life, but also begin a more fundamental research and changes in legal and philosophical, theoretical, legal and practical areas of law field. Thus, activation of desire, both in theory and in practice organizes, harmonizes and unifies legal reality. In this case, first of all, we have in mind the diverse characteristics of the system of law – cultural and civilizational, substantial and functional, the formation and social structure (national, group, personality, class, etc.). Also on one of the first places of the current, so to speak, of legal interest are generic legal associations – a natural and positive law, public and private law. They abut less common systemic association – the material and the formal (procedural) branch of law, conflict and human (social) rights. Integrative approach to understanding of the law comes from the fact that it is unlikely there is actually quite a perfect right, and why the

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members of this approach, taking various theories of the most rational, in their view, the parties withdrew the following definition. Right – a combination recognized in the community, and the protection provided by the official standards of equality and justice, fighting regulatory and approval of free wills in their relationship with each other. 4. Regulatory, security, jurisdictional, orienting and incentive functions of law. For a full understanding of the law, you must also consider the functions of law. The functions of law – these are the main areas of legal influence, expressing the role of law in the regulation of social relations. In the analysis of the concept of «function of law» reveals its main features: the relationship with the political nature and according to the social purpose of the legal system, depending on the social environment, the connection with the activities of social actors. The nature and purpose of social rights are specified in its functions. Functions of law are the basic directions of the legal effects on social relations. Usually there allocate proper legal and social functions of law. The first shows on which areas of social life was a legal effect, and second, how this influence is carried out. There are roughly two criteria that are the basis of classification of the functions of law: 1) it is external, according to which social functions allocate rights – economic (law regulates the relations of production, maintains the form of property, etc.), political (political relations governs and regulates the activity of subjects of the political system, etc.), educational (reflects certain ideology, has specific pedagogical impact on individuals); 2) internal, arising from the very nature of law. This has regulatory and watchdog functions. The regulatory function of law – this is due to the social purpose of the direction of legal influence, reflected in the establishment of positive rules of conduct, providing subjective rights and placing legal obligations on entities in order to strengthen and promote the development of relations with the interests of society, the state, the individual. As part of this function, it classifies into two types: regulatory static and regulatory dynamic. Regulatory static function is expressed in the impact of law on social relations through their attachment to certain legal institutions.

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Crucial in conducting static function belongs to the institute of political rights and freedoms, which are enshrined in the constitution. Regulatory dynamic function is expressed in the impact of law on social relations by providing active behavior of entities. It is embodied in the institutions of civil, administrative and labor law. Protection function – is due to the social purpose of the direction of legal pressure, aimed at protection of the significant, the most important economic, political, national and personal relations, their integrity, establishing measures of legal protection and legal responsibility, the order of their placing and execution. For a full understanding of the law as a social phenomenon we must consider the principles of law. Principles of law – these are the main origins of the provisions of the ideas that express the essence of the laws and rights as a specific social control. Principles of law are the most common rules of behavior that are either directly stated in the law, or are derived from its meaning. They depend on the incidence of isolated common law, cross-industry and industry guidelines. General legal principles apply in all the areas of law. They are: a) equity; b) the legal equality of all citizens before the law; c) humanism; d) democracy; e) the unity of rights and responsibilities; f) a combination of persuasion and coercion, etc. Cross-sectorial principles are the principles that characterize the most significant features of several areas of law. These include: the principle of inevitability of punishment, the adversarial principle, the principle of publicity of court proceedings, etc. Industry principles are those acting only within the same industry. These include: the civil law – the principle of equality of the parties in the property relations, the principle of voluntary action, in a criminal trial – the principles or the presumption of innocence, in labor law – the principle of freedom of labor, etc. Functional analysis of the legal system includes the definition, in the first place, functional and organizational characteristics of legal phenomena – the right-and law-making, the right, regulatory and axiological by law, legal policy, the functions of law (integrative,

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regulatory and axiological, communication, security). By functional side of the legal system are apparently legal mechanisms and remedies, legal practice, legal techniques, etc. This division of the substantial and functional part of the legal system can not be definitive, but is more or less relative. Any member has the substantial or concealed features or functionality, and, conversely, any functional characteristic of the legal system has certain the substantial foundation. Legal relations, as in many respects the substantial objective phenomenon, both are actively functioning education system in turn. The same with the certain specification certain can be said about the practice of law, legal policy, legal, engineering, etc. Principles of law involved in the regulation of social relations, as they not only determine the general direction of the legal impact, but can also be the basis for a decision on a specific legal case (for example, the analogy of law). Questions for the self-control: 1. What means the system of the normative regulation of the public relations? 2. Please, account the signs of the law. 3. What means the social value of the law? 4. Please, tell about the essence of the law. Task for srs: Please, discuss the main positions of the Law «On state service of the Republic of Kazakhstan».

CHAPTER 10

Law, morality, customs, and other social norms

1. The variety of social norms at work in society, their classification. 2. The nature and form of interaction of morality, law and morality in the regulation of human behavior.

1. The variety of social norms at work in society, their classification. Each person, consciously or unconsciously, guided in his activities by certain rules, i.e. examples of proper behavior, models. These rules vary in content (regulate relations between people in different areas of public life, domestic, family, about the property, the exercise of political power, etc.), and on ways (can be installed by various citizens’ organizations, state agencies, or to form historically, in the process of human development). Without the existence of the rules governing the behavior of the people, would be impossible, and the existence of society. Traditionally, all the rules on the subject of regulation are divided into two groups – the so-called social norms that govern the relationship between people, their associations, and the so-called technical rules that govern the relationship between man and the outside world, i.e. nature and technology. Technical standards specify how to behave in the various natural objects, how to deal with simple and complex technical equipment, how to create wealth, etc. G.F. Shershenevich wrote: «The term «social» refers to such rules, or rules that govern the relationship between individuals, between individuals and social groups, between individuals and society. Where

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a society, there must be rules of the hostel, or social norms. Social norms define the behavior of the individual in society and, therefore, man’s relation to other people». Theory of law turns its attention primarily on the social norms. However, trends in the development of mankind, especially in the past two centuries, such that the result of great importance in the modern world of technology and techniques and aggravation of global problems (environment, natural resources, energy and the threat of a nuclear catastrophe, etc.) the number of technical standards became social norms. Was formed a special layer of so-called techno-social norms governing the relations between the people on the execution of technical rules. This includes, for example, the rules in force in the sphere of material production, public safety and the environment (road rules of conduct, the rules set for other modes of transport, different standards, instruction on the operation of machines and mechanisms, rates of raw material, etc.). The technical standards means all national standards, which includes the addition of highly technical, such as hygiene, environmental, biological, physiological, etc. But for the sake of brevity, all of them usually called technical in relation to the social context. Of course, technical standards, just like the scope of their applications can not exist in isolation from social norms and areas of their direct applicability. All rules related, interact, have a constant influence on each other. Indirectly affect the technical standards and the whole of society, as well as to emerging between people in it and form groups and associations relationship. In this sense, these standards are not only technical, but social. The question of the technical and social, primarily on technical and legal norms, despite its importance, remains a poorly explored in the theory of law. Social norms are the general rules governing the behavior of people in society. The main features of the social norms are normative, universal, the result of conscious and volitional activity of people as the highest form of reflection of the objective world, the implementation of social norms, conditionings, objectives. Thus, consciously setting social norms, people and free, and not free to choose options. Their activities, if necessary, should be based on the material conditions of society, the political and spiritual culture. Social norms are quite diverse, as diverse and they regulate social relations. Social norms can be classified in different terms. In the

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theory of law the two bases are usually taken into account: how to establish and maintain social norms and their content. Prof. A.S. Ibraeva emphasizes: «The rules that guide the joint livelihoods of the people represented in international agreements (conventions); constitutions, statutes of various organizations, parties, codes, laws, moral requirements (regulations), religious customs, cultural traditions, and political commitment. With these rules set a specific order, hierarchy (that is, subordination of one another). Operation of the rules is observed everywhere; they cover a variety of activities of people in their relations with each other. Social norms begin to function from the time when the human fetus is still in the mother’s body and ends with the events associated with the death of man». On how to establish and provide to distinguish: the law, morality (morality), customs (traditions, customs, rituals, and business usage), and the corporate norm (organizations). By content there are allocated different amounts of social norms, depending on how the distinction regulated by social norms of social relations. Here they are: political norms, economic norms, cultural norms, aesthetic norms, religious norms, technical and social norms. The rule of law is the rule of conduct established and provided by the state. Morality – these are the rules, folding under a perception of good and evil, right and wrong, honor and dishonor. Customs (traditions, rituals, ceremonies, business usage) – these are the rules, folding historically and, due to their multiple applications, which were included in the habit of people. Customs were once either moral or religious norms, but in time the true meaning has been forgotten. Corporate norms (standards organizations) – are the rules of conduct issued by the organizations or established in organizations and apply to their members. Corporate norms govern relations within the organization, the order of its activities, the relationships of persons making up the organization. Political norms are the rules governing the relations on the exercise of political power, social control. Economic rules are the rules governing the relations on the production and distribution of wealth. Cultural norms are the rules that govern the conduct of people in the non-manufacturing sector of society.

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Religious norms are the rules governing the relationship of believers with each other, with religious organizations, religious ceremonies, etc. Technical and social standards are necessary or appropriate rules treatment of people with natural objects, tools, a variety of technical devices, etc. Prof. M.N. Marchenko rightly argues that «law and morality have common features and properties. Their main common features are manifested in the fact that they are part of the contents of a society’s culture, value-are forms of consciousness, have normative content and serve as regulators of human behavior». 2. The nature and form of interaction of morality, law and morality in the regulation of human behavior. Most people have the law and moral norms. Morality – a system of rules and principles governing the behavior of people with positions of right and wrong, just and unjust. In the system of social norms, moral norms are the most universal regulators of public relations from the perspective of right and wrong, just and unjust, and provided measures of social influence. Moral concepts are more progressive, more developed than the right. The right time is, as it were a lower level of development, already a past morality. But this relationship between law and morality is not something you need. Where the law is created not the old folk customs, and strong governmental authority is not bound unconditional subordination popular views, the law may, on the contrary, to start from moral concepts, far ahead of him overall level of moral development of society. Prof. M.I. Abdullaev and S.A. Komarov argue that «the interaction of law and morality in society is a complex, multifaceted process. Actively influencing the morality, law promotes deeper rooting it at the same time it is itself influenced by the moral factor is constantly enriched by: expanding its moral basis, increased credibility, increasing its role as a social control of public relations. Thus, the impact of the morality of the process is accompanied by the reaction of the moral law». From the history of human development we see that the religious laws were legal ones, regulators of political, governmental, civil, marriage and family and other relationships. Standards that are set by religious organizations, interfere with existing law in several respects, namely, the fundamental law of the state provides a legal basis for the

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activities of religious organizations, guaranteeing all worship freely. Religious groups can be given legal status. The rules of law and customs have a number of features common to all social norms: are common, mandatory rules of human behavior, indicating what should or could be human behavior, according to certain groups. However, the customs and rules of law are different in origin, form of expression, a method to ensure implementation. Social norms are the general rules governing the behavior of people in society. Normativity is the most characteristic feature of social norms. Social norms are rules of behavior, that is, indicate how to proceed in a particular situation. They are the regulators of public relations and are means of social control, as a necessary condition for the life and development of society. Effect of social norms leads to settle the public order. Legal customs and traditions are parts of the common customs and traditions. Their sources were primitive customs and traditions that were part of the religious and moral norms. And in the next era law and sense of justice were based on actively developing in society new customs and traditions. Entire known history of law legal systems based mainly on state-sanctioned customs – customary law, or, as it is called now, a popular, indigenous, folk law. Legal customs and traditions from many repetitions produce in the minds and behavior of legal skills and legal habits. All these elements of legal culture suggest continuity of its achievements that enrich the legal system. Customary law is the people’s rights, that is, natural law, which is applied in many countries without any further instruction. The latter is nothing but a mutilated civilization contrary to the general law and legal culture. By the way, the rules of customary law have always been more effective than positive law. The most convincing example is the observance of international legal norms. Well before the adoption of The Hague, Vienna, Geneva Conventions, common law to better protect the rights of prisoners of war, wounded, obey the declaration of war, out of international agreements, the terms of the truce, and more, in the most civilized XX century is often violated in the presence of formal legal agreements signature leaders of civilized nations. In the modern world of legal theory and practice of national revival – folk-aboriginal-customary law is an organic part of modern legal systems modernization not only in the newly independent states, but also in developed countries. This is not surprising, since under the entire above name is meant, above all, a natural right.

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The legal system of its essential elements (legal awareness and legal culture) directly links with the general and spiritual culture and the legal system, with its huge body of law and the provisions of the laws very closely akin to such important and significant normative and intensely norm-containing phenomena of spiritual culture, like morality and ethics, religion, art culture, general and spiritual culture of the legal system bring together axiological orientation, values and ​​ sense of purpose, values, rights and legal values ​​are an integral part of universal human values, and all areas of general and spiritual culture performs a regulatory function in public life, there is a regulatory role the legal system and all its elements is comparable to the regulatory features of religion, morality, art, and in many ways, it seems, much superior to them in the effectiveness and efficiency as a result of strict regulations, the formal definition, a substantial warranty of many elements. Questions for the self-control: 1. What means the morality? 2. What the main difference between the morality and the law? 3. What the main difference between the social and technical norms? 4. Please, explain the similarities and the peculiarities of the legal norms and the customs. Task for srs: Please, discuss the main positions of the Law «On the normative legal acts of the Republic of Kazakhstan», adopted 24.03.1998.

CHAPTER 11

Concept, nature and scope of law

1. Law as a normative regulator of public relations. 2. Content of the law. Law-scale behavior of the individual. 3. The ratio of the economy, politics and law.

1. The law as a regulatory control of public relations. The law to raise regulatory control of public relations, regulations is that the state formally establishes the right and ensures its implementation, including through state coercion. Law, being normative expression of public will, regulates public relations in the class, or any other general social interest. Most components of the law are presentable-binding. The legal rules model behavior and possible solutions are given samples of possible cases. Higher social mission of law is to provide, in a statutory order to guarantee freedom in society, to assert, to create optimal conditions for the pre-emptive action in the community economic and spiritual factors, eliminating arbitrariness and self-will of the public life. At right is a great value. The value of the law – is the ability to provide the right and the means to address social justice, progressive needs and interests of individuals and society as a whole. 2. Content of the law. Law-scale behavior of the individual. Essence of the law is expressed in its class. Law-class regulator of public relations, the class has a powerful force. By its nature it is made into a law will of the ruling class, the content of which is determined by the material conditions of his life.

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In modern legal literature on the problem nature of law is ambiguous. In general, the essence of the law is determined by the will expressed therein, the ruling class or the entire nation. Gaining the following approach: analysis of the content and nature of rights in terms of the views of major thinkers (Kant, G.V.F. Hegel, etc.), with the positions of the various legal doctrines (the school of natural law, legal positivism, sociological jurisprudence, psychology concept of law). According to prof. V.V. Lazarev, «the essence of the right is the main, internal, relatively stable quality based on the rules that reflect its true nature and purpose in society». Prof. V.N. Hropanyuk writes: «The essence of law is seen as «security» or «division» of the vital interests of people, the expression of their will to set a certain order of social life». The essence of the right is the main, internal, relatively stable quality based on the rules that reflect its true nature and purpose in society ... So, the essence of the right is due to the material, social and cultural conditions of the society, nature classes, social groups, individuals , the general will as a result of harmonization, a combination of private or special interests, by statute or otherwise under-used to know the state and serving as a result of this general (general social) scale, a measure of (controller) and the behavior of the people. Law is a social regulator. Social regulation is necessary because it provides the normal functioning of society. The essence of social regulation, the impact on people’s behavior and activities. In society, there is a system of social controls, which consists of the following elements: 1) customs, rules of conduct created by the multiple repetition and transmission from generation to generation; 2) the standards of morality, standards of conduct that reflect the way people thought about the good and bad, of right and wrong, etc. Sanctions for violations of the moral act on the one hand man’s conscience, and on the other hand, a public reprimand; 3) corporate norms, regulate relations in the workforce; 4) the rule of law-a) formulate or sanctioned by the state, and b) their performance is provided coercive power of the state, and c) they are generally binding, and d) they regulate social relations, securing the rights and responsibilities of the participants. Right arises for the same reasons as the State. Right arises and is formed simultaneously with the state. Enough, we stopped on the study of these problems above.

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Law regulates the social relations in the society as a whole and in the interests of certain social forces. The ratio of these interests may be different in different periods of development. In modern societies have priority interests of the whole society. Law, being normative expression of public will, regulates public relations in the class, or any other general social interest. Most components of the law that is presentable-binding. The legal rules are modeled behavior and possible solutions are given samples of possible cases. Higher social mission of law is to provide a statutory order, to guarantee freedom in society, to assert, to create optimal conditions for the pre-emptive action in the community economic and spiritual factors, eliminating arbitrariness and self-will of the public life. At right is a great value. Value of the right is the ability to serve the right and the means to address social justice, progressive needs and interests of citizens, society as a whole. 3. The ratio of the economy, politics and law. The economy is a set of relations of production, the mode of production of a particular society. Politics is the art of managing society, which characterizes the relationship between the authorities about the classes, parties, nations, state and nation. There are two basic approaches to the relationship of these terms. According to the first approach, they are related to each other, and the primary factors in the development and operation of public relations are the interests of the people. In the second approach the economy determines the policy and law. The policy acts as a mediator between them. The relationship between politics and law is manifested in two ways: when the determining factor is the policy and when determining factor is the law. Questions for the self-control: 1. What means the regulatory function of the laws 2. What the main aim of the law? 3. What means the social value of the law? 4. Please, tell the similarities and the peculiarities of the economy, politics and law. Task for srs: Please, discuss the main positions of the Decree of the President of the Republic of Kazakhstan «Through the crisis to the renewal of the state», adopted 05.03.2009.

CHAPTER 12

Types of law

1. The concept of law and its relationship with socio-economic systems. 2. Type in the law formation and civilization approaches.

1. The concept of law and its relationship with socio-economic systems. Typology of law is its specific classification, which is done from the perspective of the formation and civilization approaches. Law there is the normalized logic of regulating social relations established and sanctioned by the state. The law-complex phenomenon is multifaceted. Allocate the right to general social sense and specialized legal sense. Law is characterized by strong-willed character, universally normative; it is closely connected with the state, the formal definition. Depending on the economic basis may be slave, feudal, bourgeois and socialist type of law. With the term «law» people face every day. This term is used in two senses: 1. as the ability to perform legal action, i.e. subjective right, which belongs to a certain person, 2. as the national law of any state, that is, objective law. The state regulates the social relations by law by issuing regulations of a general nature. The world-known formal regulations earliest period-law of the king Ur-Nammu, Laws of King Hammurabi (Babylon), Manu (India), 12 tables Laws (Rome), Russian truth, Sachsen Spiegel etc. These days there are so many regulations that are issued by the State authorities. Law is a system of mandatory set and provides the state with the rules issued to regulate social relations. Mandatory property law is the normative as law consists of rules that govern

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social relations. It is well known that the term «norm» in Latin means «sample». In addition, the law consists of what is permitted, restrictions and bindings. It is impersonal, generic. Law is a system of norms, rules of conduct. Characteristic way of introducing the right is the publication of public authorities within their jurisdiction regulations. All the destinations, for which the right is addressed, are obliged to perform. This is clearly manifested the sovereignty of the state. The term «procedural law» is that most of the law is executed voluntarily; there is a set procedure for the development and implementation of law. Content of law expressed in the text of regulation. Law is dynamic, some rules are canceled, others accepted. At the time, the founders of Marxism-Leninism remarked: «The law cannot be higher than the economic structure and the resulting cultural development of society». Indeed, the right is determined by the material conditions of society and expresses the will of the economically dominant class. Law in essence, is made into a law will economically dominant class, the content of which is determined by the material conditions of his life. Russian legal scholars offer a wide variety of definitions of law. We give them. Thus, Professor A.V. Malko writes: «The law is a system of mandatory, formally defined legal standards established and provided by the State and to the management of public relations». «Law is a system of mandatory, formally defined guidelines, it is the state and to regulate behavior in accordance with accepted in the community foundations of socio-economic, political and spiritual life», – the others. N.A. Gorbatyuk and V.A. Kuchinsky emphasize: «Law is a system of mandatory rules of conduct established or sanctioned by the competent national authorities or received by a referendum in order to regulate social relations, expressing the will of certain classes, populations, and to the extent of democratization society, the majority of the people in the interests of minorities, the implementation of which is provided by the state». 2. Type in the right formation and civilization approaches. As part of the formation approach the main criteria are the socio-economic characteristics, i.e. socio-economic system. That is the basis, i.e. type of production relations is, according to representatives of the approach, the deciding factor in social development, determining the appropriate type of superstructure elements: the state and the law. Under the law

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of civilized approach typology is based on specific geographic, ethnic, historical, religious and special-legal grounds. According to the criteria includes such types of rights as domestic legal family, i.e. specific historical set of rules, legal practices and the dominant ideology of the state law, as distinguished legal family, i.e. set of legal systems, the selection based on common sources of law and the structure of the historical path of its development. Our foreign colleagues generalize the concept of «legal system» with the term «legal family», while stressing that the concept of «Family Law» does not correspond to any biological reality, it is only used for didactic purposes, to identify similarities and differences between existing systems of law (Rene David, Camilla Joffre, Spinoza). Some authors, in particular, Tsvaygert K. and H. Koetz distinguish the following legal families: Romance legal family, the German legal family, the Anglo-American legal family; northern legal family, the legal family of the socialist countries, and the remaining legal family. With the right are social relations. The advantages of written law are: 1. opportunity to actively influence public attitudes, as State has a special device for the implementation of legal norms 2. enable quick response to the development of public relations by issuing appropriate regulations 3. easy access for law enforcers, 4. unity of action throughout the country. Normative legal acts are adopted for the regulation of social relations in the future, but over time they may become outdated. Then they are regulated by legal norms contained in other sources of law. Prof. M.N. Marchenko notes: «The typology or classification by type of government and legal systems is objectively necessary, natural process of learning the state legal matter, reflects the logic of the natural-historical development of the state and law, historically inevitable replacement of some types state and the rights of others, is one of the most important methods and means of knowledge of the historical development of the state and law». A.V. Malikov calls attention «to the theory of state and law-typology important means of improving the meaningfulness of scientific information, as it gives the opportunity to make the maximum number of statements and conclusions about the characteristics and properties of the object at the place it occupies in the classification system». The category «type of state» to objectively and fairly reflect the essence of the state and law, which is not constant and is not static, but constantly evolving through evolutionary changes.

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The first attempts to rational-theoretical typing state and law in terms of their socio-political characteristics were made by Aristotle, who believed that the main criteria for distinguishing number of states are ruling in the state of their property status and conducted by a State goal. He distinguished between a board, the board of a few, majority rule, and the states divided on the right (which is achieved by the common good) and wrong (which pursued private purposes). Aristotle regarded law as a political phenomenon. The political law is part of the natural, part of the conditional (positive) law. Natural law is the one that always has the same value and not on the acceptance or rejection of it. Conditional right to something is established by law (written and unwritten) and the General Agreement. G. Ellinek argued that the state and the right have different definitions, but have their usual symptoms. He singled out the empirical and ideal types of states. The fact that this criterion has the right to be there and that does not correspond to it must be rejected and eliminated. That’s G. Ellinek’s introductory idea of «medium type» because there is no type of law and the state in its pure form. In addition, it identifies types of development and types of the existence of statelegal phenomena (dynamic and static types of state and law). The founder of typing G. Kelzen put the idea of political ​​ liberty. He classified the two types of state – autocracy and democracy. L. Gumplovich singled great states (from 200 thousand to 1 million sq. km and the population of 30 to 50 million people), and small states (less than 200 thousand sq. km and a population of 30 million people.). American scientist R. Makayver divides the states by dynastic and democratic. German scientist R. Darendorf also maintains that classification. Thus, the typology of state can not be not static and final, it requires further development and refinement, for significant scientific material accumulated in recent archeology, ethnography, history (including the history of state and law), political science, sociology, constitutional law, that have not been adequately summarized in the framework of the state and law. More complete discussion of the typology of the state on this basis is not only possible, but necessary, this is one of the paths leading from the concrete material of history to create a generalized model of development of the state, and, therefore, to understand the essence and the opening of a new state.

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Questions for the self-control: 1. What means the «typology of law»? 2. What the main difference between the «typology of law» and the «type of law»? 3. What means the «law in the social meaning»? 4. Please, account all well-known types of the law. Task for srs: Please, discuss the main positions of the monograph, written by the famous comparative scholars Rene David and Kamilla Joffre-Spinozi, Moscow,1998.

CHAPTER 13

Forms (sources) of the law

1. The concept of law form. 2. Judicial (legal) precedent, legal custom. 3. Legal act. 4. Regulatory agreement as a form of law.

1. The concept of law form. Form of law is a way of expression outside the legal rules of conduct. The source of law is the external form of law, a set of methods of forming the state will. In the material sense, a source of the law refers to the material conditions of society, defined by the state government. In the formal and legal sense, the source of law understood as a set of ways of rising will of the political forces in power to the law. As a source of knowledge of the source of law is handed down to the present time, various historical documents, and religious attitudes. In accordance with the «narrow», «regulatory» approach to understanding the rights legal standards contained in the regulations. However, the legal history of the company and gives other examples of how the objectification of laws. The latter may be contained in the agreements worked out in the judicial practice, emerge historically, and not set by the state. Treaty, judicial precedent, legal practice in this case would be to act as a source of law. Along with the concept of the «source of law» in legal science is used as equivalent to the concept of «form of law», by which we mean a way of expressing the external design of legal rules, the forms of their existence.

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The source of law in the literal sense is public relations. The source of law in legal theory is the outward expression of law. By type of regulated public relations (in branches of law) are the following sources: a) Sources of constitutional law; b) Sources of criminal law; c) Sources of civil law; d) Sources of labor law. The term «source» in the legal science is used in different senses. As a source of law in the material sense we talk about social life, social relations, as their development is the need for their legal regulation. From a sociological position, the source of law is the culture, which in the process of selective evolution takes in the social experience and is expressed in mandatory rules of conduct. In ideological terms, a source of law is a legal concept, the idea, that is, awareness of the law, which also acts as a very significant factor of creation of the right. The rules of law are developed as a result of a conscious, willful human activity. In legal science and the origin of a particular document of law (Russian Truth, «Zheti-Zhargy») this includes your previous regulations, customs, and judicial practice. According to well-known legal scholars of CIS, the source of the right to name and base binding legal norm-state will, but more often than in the formal and legal meaning under the source of the right to understand the external form of the existence of legal rules. In jurisprudence with pluralistic sources of law the value of each source of law is determined by the legal system, especially in its historical development, the specific relationships. We should not lose sight of that in every branch of the law has its own conception of the sources of law. Legislation is only a small part of the labor law in industrialized countries. Rules determining the relationship between employer and employee, for the most part are not reflected in the codified law. Elsewhere in the West there is a great importance of judicial practice. Along with this, many very important issues are regulated by collective agreements often go beyond the standards set in the legislation. In modern legal literature it is stated that the form of law, ideally characterized by several features: it must secure legal will of the people, conditioned by the existing socio-economic basis, to ensure political power to serve the interests of the people, to assert the

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priority of law as the most democratic form of expression of interests, democratic procedures for the preparation and passage of regulations in law-making body. 2. Judicial (legal) precedent, legal custom. In legal literature, there are the following sources of law: judicial (legal) precedent, the judgment of the case, which is a model for the resolution of similar cases to which the state gives the universally binding. Prof. S.A. Komarov understands «judicial (legal) precedent, written or oral decision of a judicial or administrative authority, which has become a benchmark model (rule of conduct) when considering all future similar cases in the future». Judicial precedent is widely used in Great Britain, the USA, India and other countries. This is a good, fair judgment that is a reference in the resolution of other similar cases. Precedent can be both judicial and administrative. It provides a judge or official challenging opportunity for personal discretion, as in the absence of a complete analogy of life experiences they have the right to assess the degree of similarity of the circumstances under consideration. And not necessarily in all previous precedent decision, and only the essence of the legal position of the court which made the original decision or verdict. Legal precedent means a written or oral decision of a judicial or administrative authority, which has become the norm, standard, pattern (rule of conduct) when considering all future similar cases in the future. This initial decision shall become binding for all, in other words, receives state support. Level and degree of understanding of legal phenomena of antiquity should be evaluated, keeping in mind, first of all, still largely prevailed syncretism spiritual culture in general and the indivisibility of the forms of social consciousness in particular. Therefore, even if, in the ancient treatises and other sources we can not always meet the direct use of the term «legal system», though understanding the integrity and the unity in the total interconnected and interacting system of legal, governmental, political and other events is contained implicitly, as a matter of course that does not require much explanation and evidence. This situation is much the stored video which came to us in conventional systems, or as they are called now, folk, indigenous, international law, legal pluralism. To a large extent this situation exists now

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in the Anglo-Saxon common law, where the sources of law, in addition to laws, are recognized as legal precedent, academic commentary, according to the authoritative legal scholars, judicial interpretation. Now increasingly express the view that emerged in the modern era for the first time in the U.S., in the U.S. Constitution the separation of powers, the institutions of common law, democratic pluralism, and others are non-European origin. It is possible that the idea of​​ Montesquieu and other European scholars, the practice of political pluralism and participatory democracy were adopted. They existed in the original form of the cultural achievements of the Incas, the Aztecs, Mayans, and numerous other nations. If anything does not arise out of nothing, how and where in Europe and in European conquerors in the Western Hemisphere in the XVIII century, suddenly emerged as a fruitful legal ideas, institutions, and relationships? Of course, the legal heritage of Aboriginal people in the western hemisphere was ably interpreted from time and position of the new European culture, in conjunction with the achievements of Greek science and Roman law. But the question about the primary source of ideas of Montesquieu and the U.S. Constitution is not entirely clear and remains largely open. Russian author A.B. Dorohova the «round table» magazine «State and Law» in 1999, one of the effective protection of human rights is considering legal precedent, because, she says, the constitutional declaration of rights the highest value, given the current situation in Russia, there is only a «statement of intent», but it has not received so far incarnation in life. Therefore, she said, the main role in solving this problem should be given to courts as organs of the rights and freedoms of citizens and enforcement of judgments on the most important social issues as a precedent when considering similar cases. Agreeing with the large role of legal precedent, it should be noted that the problem of human rights can not be limited to a particular group or rule of law and institutions. We believe that a more or less tangible progress could be achieved with systematic approach to the legal sphere and optimizing relations: the legal system and the legal system, the rule of law and the welfare state, social, economic, political and legal system. This optimization should be reflected in the underlying instruments and, above all, the constitutional foundations of the legal system, since the Constitution is a powerful factor in law-making, both in terms of

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direct action of its rules and regulations by the orienting effect on the legislative process. The Constitution is the main regulatory criterion of interpretation and application of all legal acts and committing legal action in the legal system guarantees the rule of law the law is designed to ensure legal stability and succession even when political and other changes in society. Legal (authorized) tradition – one of the most ancient forms of law. Legal practice is a rule of conduct, which by frequent repetition becomes a habit, passed on from generation to generation, and is protected by coercive power of the state. Legal practice in fact is a state-sanctioned rule of conduct, which was confirmed in the society as a simple result of a long tradition in the frequency and has become a tradition. Stories are many cases when the customs of the tribal system, transforming, gradually escalated into an authorized customs. The most common practices in the tribal system had customs and traditions of blood revenge, «an eye for an eye, a tooth for a tooth», so-called the principle of «retaliation». These customs gradually replaced by a fine and a penalty as the stratification of society into groups already acquired differentiated. It is now possible to speak of «rehabilitation» and «legalization» in the legal system of the ancient Kazakhstan (traditional) source of law, custom, and, accordingly, such as the forms of law, common law. Brief note on the issue of separate eligibility criteria of the law: with regard to Russia such «clear» criteria «respectively letter and spirit of the Constitution» are: for the standards expressed in the law – compliance with the Constitution, to the rules contained in the normative acts, and other sources of law (law treaty, the legal tradition), – compliance with the standards expressed in the federal laws, statutes and laws of the Federation and, ultimately, in the Constitution, to the rules contained in all of the sources of law – compliance with the basic rights and freedoms of man and citizen, in accordance with the principles and norms of international law, enshrined and guaranteed in the Constitution as a direct effect. J. Balasaguni addresses such legal edification to people of all classes, professions, and titles. «The ignorant, despised the laws of propriety, be despised by all who know the custom», «Hear what Beck said, appreciated the law, legal custom, he ruled», etc. In particular, it is now possible to speak of a «rehabilitation» and «legalization» in the legal system of Kazakhstan this ancient (tra-

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ditional) source of law, custom, and, accordingly, such as the forms of law, common law. Before talking about the «rehabilitation» and «legalization» of customary law, consider once again the attitude to the word «civilization». This term, if ever had a meaning, from the frequent repetition seems to have lost this sense of all. The word «civilized» is used with the tenacity and the level of understanding of the parrot. Our reproach marginally related to the author K.A. Alimzhan, it is addressed to many more established people in science, politics, and, unfortunately, in the culture and law. Civilization (technological, scientific, technical, customer, etc.) is the main culprit for the weakening of the real culture, replacing it with substitutes of «mass culture» and the cause of the collapse of society and man, has led to many environmental disasters of mankind. In general, this process called partial rehabilitation and legalization, feels so much timidity, inconsistency, incompleteness, which is doubtful all evaluated as a new phenomenon in the legal system, the more it is little evidence of revival going on for some elements of the traditional legal system, because it is used Even the term «customary law», to be replaced by a legally undefined term «custom». The famous Russian scientist G.F. Shershenevich stated an opinion, which, in our opinion, shows just the opposite: «The court is obliged to apply the law, with little intended for ethical assessment of customary law, as well as legal standards ...»As you can see, a Russian lawyer means not only a custom, but a rule of customary law, «... the existence of which is installed with the proper accuracy, and it should be applied by the court, even if contrary to the ethical views of the judges». All is definite and unequivocal. By the way, K.A. Alimzhan under the usual norm, may have in mind a rule of customary law, as in the title consumed a combination of the doctrine of custom (customary law). But in this case it is not clear why the rule of customary law, obviously, should be assessed in terms of a court of law? All of this suggests that theoretical and legal studies which became relevant again disassemble problems of customary excuse behind the needs of the legal practice of re-emerging, and the formation of a new holistic legal system is impossible to ignore the vast array of traditional legal system, national heritage legal culture. In this issue there are the same in many seemingly contradictory processes of revival and modernization of the legal system.

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In the modern world of legal theory and practice of national revival – folk – Aboriginal – customary law is an organic part of modern legal systems modernization not only in the newly independent states, but also in developed countries. This is not surprising, since the entire above name is meant, above all, a natural right. Analyzing the collection of folklore by law prof. R.A. Tuzmuhamedov notes that in Russia related to the topic is negative, while in the West the problem is all the more interested researchers. It involved such authorities of public international law, as Ian Brownlie (England), Richard Falk (United States), Bedzhaun Mohammed (Algeria), James Crawford (Australia) and others. They explore the concept of folk law and its relation to the concept of the people’s right, the history of the study of the law, its development, codes, case law, conflicts, and international folk law. Folk-right is defined as a traditional set of obligations and prohibitions, orally transmitted socially defined group of people, sanctioned or demanded it and demanding individuals or their associations (families, clans) under threat of punishment. According to the authors of this book, the term «folk law» is more accurate than «confusing» concept – «common law», «unwritten law», «common law», «the law of indigenous peoples», «living law», «primitive law», etc. No matter how many democratized Western jurists, from Eurocentric arrogance immediately rid hard and then it slips around: regular or unwritten law of confusing. Meanwhile, entitled his book «Folk Law», foreign scholars complete explanatory title «Sketches ... unwritten law». Confusing incomprehensible and unknown, but after all that ignorance is no argument, the author said the same western B. Spinoza. Our experts will examine and evaluate the definition of folk law and the accompanying research, find a rational that may come to Kazakhstan for the creative use of the terms in the rebirth and renewal of the legal system. We present some worthwhile ideas in a presentation of Russian prof. R.A. Tuzmuhamedov. Naturally, one of the main problems faced by Western authors – how to identify the subject of folk law – «people» («folk»). If in the XIX century by Folk (people) in Europe was understood the rural, illiterate population, in the twentieth century, the concept is fundamentally changed. Modern folklorists define «folk» as any group of people united by a «common unifying factor». Although folk law – unwritten,

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verbal, it is certainly present in our day. In society, «as a rule, there will be two categories of law: written law and folk law». Already reading about this thesis, we can identify their own characteristics. For us, «Folk» – it is not «any group of people», and all the people of Kazakhstan, a nation united by not vague «common unifying factor», and completely based on ethnic, historical, cultural, community and unity. On the practical side, it is interesting question of the legal conflicts related to the use of folk law in the simultaneous action in the area (on this case) to the Scriptures, «civilized» law. We prefer the way that, in the opinion R.A. Tuzmuhamedov, without interest for the court and the legal practice in Russia, which is also home to indigenous peoples. It is proposed, based on an experience, on the one hand, to teach folk law those who are involved in resolving cases in such cases, and those who use the last point regarding the «civilized» law, why it is applicable to the present case. 3. Legal act. Normative legal acts are the first and most perfect form of modern law. Legal act – an act of legislative activities of the government and that establishes, amends or repeals the law. In addition, the legal act is a written document of the competent public authority, which establishes, modify or terminate the law containing the rules of behavior of a general nature. Normative-legal acts issued bodies with normative competence in strictly prescribed form. The validity of a regulatory act depends not only on the location and position of the organ, but also on its jurisdiction conferred upon it by the state under the law. Depending on the validity of legal acts are divided into laws and regulations. Law is a legal act, taken in a specific order on the most important issues of public life and has supreme legal authority. The legally binding means property regulations actually act producing legally binding effects. Legal validity depends on where law-making body in the apparatus of the state, from its jurisdiction, and all of this is determined by the problem being to the public authority tasks. Legal effect is manifested in the hierarchy of legal acts. Regulations are issued on the basis and in pursuance of laws acts containing legal norms. Higher validity of the law is manifested in this rule (this is one of the principles of the rule of law), in the other by-law regulations. The

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rule of law by the principle of popular sovereignty is from the fact that the people themselves or pass laws in a referendum or elections delegate his authority supreme representative body of governmentparliament. The rule of law is as follows: 1. no body has the right to cancel or change the law, 2. all other regulations shall not conflict with the law, 3. the rule of law operates, enshrined in law. Depending on the regulated public relations, the degree of importance of the laws are divided into: 1. key (the Constitution) 2. constitutional 3. organic 4. ordinary. Constitution – is the main law of the state. He takes the main place in the regulations, is the legal basis of all legislation. The current Constitution of the Republic of Kazakhstan was adopted on 30 August 1995, in a national referendum. Then it was amended twice: the Law of the Parliament of Kazakhstan «On Introduction of Amendments and Additions» on October 7, 1998 and the special law of 21 May 2007. The Constitution is the primary law-making and act system-formative legal system to optimize relations: the legal system and the legal system, the rule of law and civil society, social, economic, political and legal system, the Constitution provides the legal system of the legal rule of law, legal stability and succession even political and other changes in society; It is clear that the most democratic constitution, which provides the most extensive rights of the population, the separation of powers, rule of law, etc., becomes a simple declaration, if its implementation is not based advanced, comprehensive, hierarchical structures, consistent legal system. Pluralism lawmaking today we expressed quite unique: there is a whole system of laws, which, oddly analyze, does not meet the traditional classification laws. Given the constitutional provisions, Assoc. R.T. Okusheva distinguishes ten types of laws: 1) The Constitution of the Republic of Kazakhstan, and 2) Constitutional Law of the Parliament of Kazakhstan (item 4 of article 62, paragraph 1 of Art. 53, Article 9, paragraph 4. Article 64, § 4 Article 49, paragraph 6. article 71, paragraph 4 of Article 75; p.1.st.92) 3) The law of the Parliament of the Republic of Kazakhstan (p.1st.62) 4) the Act of the Parliament of the Republic of Kazakhstan to amend to the Constitution (Clause 1 of Article 53, Article 91 paragraph 1), 5) Act of Parliament to make changes and additions to the constitutional laws (p.1. Article 53 of), 6) the law adopted in the national referendum (p.2. pg.1, p.2. article

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3, paragraph 1. Article 91) 7) The law of the President of the Republic of Kazakhstan (p.4. of Article 53, paragraph 2. art. 45), 8) Decree of the President of Kazakhstan, having the force of constitutional law, 9) Presidential Decree having the force of law (Section 2. article 61, paragraph 2. Article 45), 10) The Law of Government (p.7. Art.61). Such a variety of laws in the RK disconcerts. What is it – the birth of a qualitatively new system of legislation? If – yes, to what extent it meets legal principles, it is whether the system is legal content? In the above classification of laws on the Constitution largely conventional: to use the phrase «The Law of Parliament», the «Law of the President», «legitimate government» is not used in the Constitution nor in the Law «On normative legal acts». By classification (or taxonomy) of R.T. Okusheva in this case refrained from direct assessment of the situation and expressed rather vaguely. In particular, it suggests that the proposed classification headings such laws as 2), 3), 4), 5), 6), 7), 10) is likely to cause some critical objections to both the representatives of academia, so and practitioners, as in a form and content, this classification does not coincide with the famous traditional approach to classification of laws. But at the same time, this fact, she noted, stimulates new scientific research in the study area, especially in the actual legal practice which operates a wider range of law than it is presented in the Constitution. In this case, examples of the Constitutional Law of the Republic of Kazakhstan on amendments and additions to the Decree of the President having the force of constitutional law, the Law of the Republic of Kazakhstan on amendments and additions to the Decree of the President, which has the force of law. This includes even a group of acts having the force of law and adopted by the President in the period of absence of the Parliament of the Republic of Kazakhstan and the second delegation of legislative power, but acting today. But in another article R.T. Okusheva expresses a definite opinion on the ten kinds of laws, separated by the content and meaning of the Constitution. She writes: «This, in our view, is quite acceptable classification model laws in the Republic of Kazakhstan, as the subject and differential indicate the location of each law, subject to the host, and their validity. In other words, it shows that the Parliament adopts several kinds of laws that give their hierarchy, and apart from him, there are two bodies – the President and the government having the right to make regulations, equal in status as the law».

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It’s also extraordinary that the president has the right to receive two types of acts, among which is difficult to distinguish their legal force – Laws and decrees having the force of law. However, they cannot be put into a common set of laws, as adopted for different reasons, in different situations and in different, apparently procedure. Legal regulation of them is not very clear. To clarify the problem-solving system of legislation was the Act «On normative legal acts», adopted ten years ago, March 24, 1998. Its Article 1 provides a system of concepts of legislative sphere – legal act, legislation, rule of law (legal norm), and the level of legal act, a law introducing amendments to the Constitution of the Republic of Kazakhstan, constitutional law, law, statute, code, regulations, and authorized body – with 11 concepts. We do not undertake to analyze these concepts individually or in their chain of command, to the extent they are successful or not quite perfect. This is a special theme of the study. Just note that made a significant next step after the formation of the Constitution of the legal system, and thus the real intention to form a complete system of law and the legal system in general, the rule of law and civil society. In Art. 3 of the Act provides a detailed list of the main types of derivatives and regulations – eight types of fixed and four types of derivative instruments. All these are called not only normative, but acts. Art. 4 is called «hierarchy of normative legal acts», in it we counted 20 species regulations, grouped into 10 levels of subordination. As we can see, in a relatively short period of time before scientists and practitioners appeared quite meanings classified legal system. Therefore, before the science gets a lot of questions, and perhaps chief among them – to determine the degree of conformity of this vast system of law system of law of non-contradiction and the legal system of the state of law. It is therefore necessary to turn to the analysis of categorical relations above systems of law and legislation in the common law system. The problems are pretty much discussed by scientists of the Russian Federation; we are, unfortunately, a few behind. While on the other hand, need time to test in practice the new legislation to assess the establishment of a full-bodied system formations in law and legislation. At the same time, theoretical studies in Russia can be used as an experience; the more scholarly discussion of it is practiced more spending in the regions closer to the «live» legal reality, with the

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publication in the press materials and results of research and Lessons Learned. With respect to claim 1 of the main content of Article 4 of the Constitution of the existing law rather sharply expressed by the Academician of the NAS of the Republic of Kazakhstan G.S. Sapargaliev: «Thus, the right is identified with the laws, regulations. In legal science is generally accepted that it is impossible to identify rules and laws. Right is a management tool based on the principles of democracy, justice and humanism. If the policy is aimed at the formulation of such a right, then the control is in the interest of the people. If the policy and management do not meet these guidelines, they cannot rely on the law, that is, they are directed not to the legal case. They can rely on the law, the law on unlawful. Could it be the law of unlawful? Yes, it can. ... The Constitution of the Republic of Kazakhstan provides normative understanding of law. According to it, any act, regardless of its content, is the right ... After all, no one government agency is not guaranteed by the adoption of a normative act contrary to the interests of the nation or its parts. Therefore, there is value-understanding of law, which is the main content of the act». But more significantly soften criticism, a respected author hopes that the definition of the right given by the Constitution, can be the basis for a democratic legislation. We must bear in mind, he believes that the constitutional idea is that the adopted laws, regulations should be humane, democratic and fair, and that the law-making body guided by the Constitution for the adoption of regulations that are legal in content. Of course, these assumptions and expectations are not contrary to the general legal ideas and principles of law-making and law-enforcement practice of the common law, as well as conventional systems, folklore, indigenous rights, to the same practices and systemic understanding of foreign law permits a wide palette of pluralistic language. It can be said that the term «existing law» in the Constitution itself is not inherently flawed. As can be seen, the above characteristics of law and its sources, and the legal system are very diverse and ambiguous. Another case in which legal environment with which the system interacts legal culture system of law? If we consider our present harsh legal reality, it will probably have to accept the fact that the designation of the system of law applicable law, with the inclusion of all the regulations and the two types of regulatory decisions is not a major flaw in our legal system and the legal system.

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The Constitution of the Republic of Kazakhstan to the principle of separation of powers, with some of its correction, as our country is currently in a special transitional period and needs a strong power of the President as the main guarantor of constitutional rights and freedoms of man and citizen, coordinating the activities of the legislative, executive and judicial powers, State. In this Constitution provides for the democratic foundations of education of all branches of government, including the election of the President – Head of the state through a national direct secret ballot. «Presumption of natural law» is a very valuable position, reflecting a characteristic feature of the rule of law and civil society, worthy, perhaps in the future to be written in the Constitution. But the position of the «indirect method of realization of freedom» is in doubt. The main meaning and importance of civil society and in fact lie in the fact that it through political institutions and the State will incarnate the minimum number of interests and needs of human and civil rights and freedoms. Root mass of the latter should be realized through selfmanagement is just the beginning of the laws based on the principles of natural justice. Therefore, civil society, in general, should only interact with the legislative branch, bypassing bureaucratic offices, and bureaucratic obstacles. List of constitutional laws exhaustively defined by the Constitution and the Law «On normative legal acts of the Republic of Kazakhstan». Ordinary laws, all other legislative acts adopted by the Parliament. Some authors distinguish the organic laws, which are the «laws governing the organization and operation of government agencies on the basis of blanket articles of the constitution or law, to which refers the constitution». Subordinate regulations – it acts adopted by executive and administrative bodies of the State on the basis and in pursuance of the law. They are: – Presidential Decree; – Regulations and decisions of the Government; Rules and regulations of ministries, departments, committees in the form of instructions, regulations, orders, and others; – Regulations of the local executive bodies; – Local regulations, i.e. acts adopted by the institutions, enterprises and institutions. Rule of law, to regulate social relations are contained in official documents, acts and regulations. Operating in a particular state regula-

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tions consistent with each other and form a complete system, called the system of legislation. Questions the concept of the legal regulations, the normative legal acts in the space and time are important, both for the law-making process, and for the work to implement the law. It is a legal act as the external form of the right to determine which regulate social relations contained in the act of the law, when they begin to act, what territory they spread, what category of persons concerned. Regulatory and legal act is a product of the legal effects which it provided. Scope of the regulatory act are usually installed on three main parameters: time, territory, and the public. Sometimes add a fourth option: a sphere of social relations that govern contained in the legal act and the law say about the subject of regulatory and legal acts. With the redistributions of the regulation implementing the requirements associated law. These limits should be regulated so that the adopted regulations are put into effect in a timely manner, the old canceled, strictly determined by their chain of command, avoid any arbitrary use of the act to relationships that do not fall within the scope of the operation. Regulatory and legal act in time, subject to the following factors: 1. the entry into legal force, 2. moment of loss and void. Date of entry into legal force may be specified, or in the legal act, or in an accompanying document. Called a specific date, most common period between the adoption and implementation of a regulatory act does not exceed one to three months. Legal act can enter into legal force in stages. In this case, the introduction of the stages of various chapters, sections, articles or designated deadlines associated with the onset of certain conditions. Can be specified as the following term: legal act comes into legal force from the date of signing the go. The following methods of termination of the regulations on time: 1. direct cancellation regulatory act 2. virtual abolition of the legal act by another piece of legislation, adopted on the same subject, 3. expiration of the term for which was issued a legal act, if time has been fixed 4. changes in the situation, the disappearance of public relations, the regulation of which were calculated certain regulations. Regulatory and legal acts in the area due to their spread in the territory. Normative legal acts of the State extends to the entire territory of the State. This rule follows from the characterization of the power of the state as a sovereign power. It is because of the state sovereignty

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of regulatory and legal acts of the State in its territory completely and exclusively. State territory recognized part of the world to which the sovereign power of the State. Usually, it does include: land space within the state borders, the subsoil within state borders, internal waters, i.e. water in rivers, lakes and other bodies of water, the shores of which is wholly owned by the state, territorial waters, continental shelf, air space within national borders, military ships flying the flag of the state, civil ships flying the flag of States that are in international waters or in international airspace, territory embassies, missions and consulates of the state abroad, space ships (stations) with the sign of the state, a registered object. The general rule of the legal acts in the space, there are exceptions to the so-called cases of extra-territorial operation of the law, which is manifested mainly in the relations with foreign citizens and organizations. Normative legal acts of the state as a general rule extends to all persons within the territory of that State. Thus, under the laws and regulations of any country subject to the citizens of the State, foreign citizens and stateless persons in the territory of that State. Effect of regulations on number of persons can be seen also in the following aspect: the addressees the requirements contained in the regulations are individuals, a variety of non-governmental (commercial and non-profit) organizations, officials, government agencies, the state as a whole. Thus, the effect of regulations on the number of persons classified according to the following reasons: the political and legal status (aliens, citizens, stateless persons and refugees), gender (male and female), age, professional affiliation (military, special servants). The opinions of leading scientists in the field of civil law regarding systemic issues in the chain of command and hierarchy of legal acts. Academician of the NAS of the Republic of Kazakhstan M.K. Suleymenov and prof. Yu.G. Basin, summing up the work on the adoption of the Civil Code, write: «The mechanism introduced by the Law on Normative Legal Acts ... not perfect ... With the adoption of the Civil Code (Special Section), the situation escalated. The law specifically allocating codes as a unifying and systematizing the laws governing the homogeneous social relations (paragraphs 9 Art. 4), set them, however, on one level of the hierarchy with ordinary laws (claims 3 point 2 of Article 4) . Next (Article 6 of the Law) found that

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when comparing the non-reciprocal regulations of different legal force has priority act at higher levels. In case of dispute as acts of equal legal force later adopted normative act takes precedence over the previous decision of the act». It is logical reasoning, that he observes that the presence of the phrase «contradictions» that rule allows for the adoption of several regulations on uniform social relations. However, if subsequently adopted a normative act of a higher level than the current one, the latter in the same piece of legislation should be declared invalid, or in practice, maintaining the status of the existence of two regulations, even if at different levels, but the governing homogeneous social relation, cause conflict especially in cases of claims of civil proceedings. It is understood that each party to the civil process will be based, defending their interests, it is the rules of the legal act, which is more in line with its point of view. In accordance with Art. 267 CC only in the courts of invalid legal act, and as the former is not a normative act is declared invalid, the party of civil relations defends its position and bears all the material costs to pay for the trial. Therefore, according to M. SeydAhmed, regulation of higher legal force should be determined by the fate of the former regulation. Art. 6 of the acts and regulations in its meaning does not exclude the possibility of a standard-setting instrument less legal force compared with the normative legal act. But the question is, what is the need to take legal act is clearly against the contents of the existing normative legal act of higher legal force? All the more so in 3 to 4 provides: «... each of the normative legal acts of lower level cannot contradict the normative legal acts of higher levels». This provision categorically captures inadmissibility of subordinate entities regulations contradict the normative legal acts of the higher authorities. Moreover, like M. Seyd-Akhmetov, such regulations will not be registered in the Ministry of Justice of RK (paragraphs 2) of section 2 of Art. 38 of the same Act, that means they cannot be considered in force. Thus, it would seem, that the whole system (the organization hierarchy, planning, training and development, negotiation, decision regulations) generally precludes the possibility of the simultaneous existence of uniform regulation of social relations of several different levels of regulations, however, such a legal nonsense as Section 1, Art. 6 exists. The reasons for it must be sought in the shortcomings of the system of laws and law-making, or even in incoherence of legal system.

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The system of any state laws tends to divide by laws and regulations. Law is a legal act, which has the highest legal force, passed in a very specific, special circumstances, establishing the basic rules of all branches of the law and regulating the most important public relations. The effectiveness of legal reform, in general, to a large extent depends on the degree of involvement of each organic law in the legal system, legal system, legal system, and strict compliance with the Constitution and the Law «On normative legal acts», the Civil Code, etc. Each bill assumes exposed thorough examination for compliance with the basic principles of law. However, it should be checked for compliance with the system of legislation, law, legal system. In industrial research we should also identify the degree of their own system of each industry and involvement in more general systems and subsystems of the entire legal sector. But such coordination efforts undertaken so far is not enough. To some extent, this does not quite promote rapid dynamic processes of law reform, which has positive and negative sides. Sometimes there is the imminent obsolescence of the law in the process of scientific understanding for which to a certain time. In a rapidly changing legal process is somewhat more history, represents the present and the future of our legal, something is shaping up as a tradition or rejected as a foreign and unusable. 4. Regulatory agreement as a form of law. Regulatory agreement – is the solution of two or more parties having an obligatory value guaranteed by the force of the state. In essence this is a special kind of legal act, he bases to follow regulations. Regulatory agreements are becoming more common in constitutional, labor, civil, international, and other areas of law. They are domestic and international, statutory and common, standard and current. The main characteristic of the regulatory contract as a source of law is that it is a voluntary will of the parties. Law treaty is an agreement between two or more parties, in which are set, change or cancel the rule of law. The most common example – is a collective agreement between the management company and the trade union representing the employees. It plays a significant role in the regulation of labor relations. On the issue of the eligibility criteria of certain norms of law, the case of Russia such «clear» criteria, respectively, to the spirit and letter of the Constitution» are the norms expressed in the law – compliance with the Constitution, to the rules contained in the normative acts and

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other sources law (law treaty, the legal tradition), – compliance with the standards expressed in the federal laws, statutes and laws of the Federation and, ultimately, in the Constitution, to the rules contained in all of the sources of law – compliance with the basic human rights and freedoms and citizen, under the generally recognized principles and norms of international law, enshrined and guaranteed in the Constitution as a direct effect. Regulatory agreements are common in international, constitutional, civil, labor and other areas of law. And their names can be very different, agreement, contract, agreement, deal, etc. Questions for the self-control: 1. What means the «form (source) of the law? 2. What means the term «judicial precedent? 3. Please, explain the difference between the legal custom and judicial precedent. 4. Please, account all the main sources of the law. Task for srs: Please, create the table of the legal customs and normative legal acts.

CHAPTER 14

Rule of law. Concept of law

1. The rule of law as a rule of human conduct. 2. The structure of the legal standard. 3. Classification of the law.

1. The rule of law as a rule of human conduct. The rule of law means obligatory set (authorized) and protected by the state rule of behavior, expressing defined by material conditions of society will and interests of the people, political parties in power, the impact on public relations for ordering. It is well known that the law and rule of law in a relation of the total and the individual, so the rule of law and as an individual retains the basic features of law as common. Law consists of acting in a given society or corporate law rules (laws). As noted by Professor. V.S. Nersesyants, «an important role in the system of social control from the time of its occurrence was the right play. For all its relative independence of law, as well as other kinds of social norms, carries its own specific regulatory function in isolation and not in isolation but in a single complex and closely with other social regulators». The definition was given by associate professor D.A. Bulgakova, «legal rule is a primary «cell» of the law, the original element of his system». This is also a kind of initial «brick», which consists of building rights. You can also say that the rule of law is the particle content of

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the law, the original structural element of his system. However, this provision does not mean that the concept of law and the rule of law are the same. The right and the unit legal norm in a relation of the total and individual, which, together with similar features have their own peculiarities. Individual legal rule or group of rules is not yet law. Law – a system of law, which in the most complete and most general form expressed in these rules will state, its universal and class character riddled uniform laws and principles arising from the economic, political and cultural structure of the society. Any single legal norm acquires qualities of law in general, only when incorporated in its overall system. The main features of the law are: 1. Normativity. The rule of law is general, not specific, it is a general rule of conduct. The rule of law is designed for similar situations, and not on any particular situation and designed to regulate social relations. 2. Consistency. No rule of law can regulate social relations. 3. The rule of law established by the competent public authorities, although in some cases the people, and community organizations can be the law. 4. The universal validity. The rules of law are binding on all citizens, public organizations and officials, as are state-power character. 5. The implementation of the law to compel the power of the state. 6. Formal definition. The content of law is quite clearly expressed in the text of the regulation with the existing methods of legal technique. Thus, the rule of law is a structural element of his system. Prof. A.S. Ibraeva emphasizes: «The rule of law – is set by the State or authorized by mandatory rules of behavior, corresponding to the basic principles of law and ensure the necessary coercive power of the state». The rule of law is established and provided by the State of mandatory rules of conduct designed to regulate relations in the society. V.V. Lazarev, S.V. Lipen and A.H. Saidov identify the following signs the law: legal, system, established by the competent public authorities, general commitment, coercive power of the state in the implementation of the law, the formal definition.

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Since the rule of law are of a form of social norms, they are inherent in the above we have listed the symptoms. Legal-rate source, the main element of law as social education, the basic concept of the entire legal system. The formation and implementation of the law, the law, all legal concepts and designs, and even the theory at its core, directly or indirectly, have a legal norm. Legal rule (rule of law) – obligatory decree, expressed as a statepowerful regulatory requirements and public relations. Law consists of a bunch of regulatory systems of human knowledge. Legal rule is too regulatory setup, but definitely designed, i.e. expressed in the legislation. Legal and regulatory setting, therefore, is the element of natural law, the legal norm element of positive law. Other authors state: «The rule of law is the rule of conduct established or authorized by the state, an elementary particle of law relating to it as part of a whole (or as an individual to the total). It was proved, that rule of law is, and not the form, and not the content of law, namely, its particle. It has the inherent content and form, and in the system-processes with other rules is the subject of law in general. The rule of law is obligatory, issued or authorized and protected by the state rule of behavior, expressing caused by material conditions of society will and interests of the people, actively influencing the public relations for the purpose of ordering». According to prof. M.N. Marchenko, «rule of law acts as a kind of measure equal to the scale that is used in assessing the behaviors of different people. It is the criterion for determining right or wrong, or rather, the legality or illegality of the various legal entities. The rule of law also serves as a kind of agreement or disagreement of the determinant of the will of the legislator’s behavior and conduct in certain specified circumstances, the rules of life are often previously unknown people». Academician S.S. Alekseev convinced that «... legal rules, especially rules codified acts are a kind of «tool shop», which provides the legal system of used legal instruments». Kazakh authors believe that «the rule of law is coming from the state and protected them obligatory, formally defined as the prescription rules of conduct, which, if necessary, are provided measures of state coercion». N.M. Korkunov emphasized: «The use of legal norms due antithesis to my interests and the interests of others because of their compliance

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is mandatory only on the condition of the existence of the interest of others, for which I must obey its activities legal process ... legal duty is the duty to the fulfillment of the rights of others requirements to comply with the rules set out the legal boundaries conflicting interests». 2. The structure of the legal standard. The structure of the law is its internal structure, the sum of its interconnected parts. Most legal scholars say about the structure of a typical rule of law and emphasized that atypical rule of law are not rules of conduct and do not have their own structure. The opposite view is held by the authors of the monograph «The norms of Soviet law. Problems of the theory». So, they say: «The structure of legal rules should be defined in relation to all kinds of them, and not only in relation to the norms, rules of behavior, as is the case at present. Legal science has made a significant step forward, considering the structure of the legal rules, depending on their specialization in the regulation of social relations ... The structure of any rule of law forms the unity of its elements. However, the nature of these elements, their number, location, method of communication and the appointment depends on the type of legal norms. It should, therefore, be distinguished that the structure of legal entry (baseline, constitutive) rules and regulations, the rules of conduct». However, the authors do not offer the unusual structure of the law. We point out the structural elements of the legal norms: 1. The hypothesis is part of the legal norm. Hypothesis points to the factual circumstances in which the attack should be guided by the rules in the rule of law. Legal norm itself may begin with the words «if ...», «if ...», or similar expressions are implied. 2. The second building block is the disposition of the law or sanction, depending on the rules. If the rule of law is regulatory, the second part of its disposition stands – the very rules of conduct that must be guided by the occurrence of the conditions stipulated hypothesis. Disposition indicates the specific rights and obligations of the participants of legal relations. If the rule of law is the law enforcement, it will be the second element of the sanction-reference to state enforcement actions that may be applied to the subjects of the law entering illegally. A citizen may be at the request of interested persons adjudged missing (disposition), if during the year in his place of residence is no information about his whereabouts (hypothesis). In the case of the appearance or discovery of the seat of the national recognized

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as missing (the hypothesis), the court shall cancel the decision on recognizing him as missing (disposition) (Civil Code). According to authors, «this tripartite structure of the law is necessary to remember the state bodies involved in law-making. For adequate and effective regulation of social relations should be properly expressed all three elements of the legal standard, first, sufficiently clear and clearly state the conditions of the legal rules, and second, to specify the behavior of the rule itself, and thirdly, to establish liability for failure to do so». Generally speaking, the structural elements of the rule of law is one of the debates in the theory of law. Two hundred years ago, English jurist G. Blackstone singled out in the law four honors: announcing commanding conducive and a penalty. Soviet jurists also held different views on the issue. 3. The rules of law are quite diverse. To facilitate their study used different classifications. The law can be classified in different terms: Depending on the role in the regulation of social relations. Under this release: 1. Typical: a) regulations: – Binding; – Prohibit; – Authorize; b) law enforcement 2. Atypical: a) generally securing; b) declarative; c) definitive. Typical rules are rules of conduct and directly govern the relationship between the entities. They are called typical because the rule of law, by definition, is a rule of conduct. The typical rules of law, in turn, are divided into regulatory and law enforcement. Regulatory rules of law designed for good behavior and establish the legal rights and duties of citizens, organizations and government bodies. Depending on the nature of the rights and obligations, i.e. the nature of the prescribed rules of conduct, regulatory rules of law are: binding, prohibiting that authorized. Binding rules of law establish the obligation of an entity to perform certain actions that require active binding behavior. In their presentation may be used verbs «should», «shall».

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Prohibiting law establish a duty of an entity from committing certain acts. In their statement of commonly used verbs «forbidden», «prohibited», «not allowed». Authorized rules give the right to perform certain actions. In their presentation usually uses the word «may», «may», «could», «may». Law enforcement rules of law are designed for misconduct and therefore always contain a reference to measures of state coercion. For the most part, they describe in some detail the misconduct. Law enforcement rules of some branches of law (labor, civil) are more general in nature. Thus, the regulatory rules of law set certain rules for positive behavior, and law enforcement, penalties for violations of these rules. 2. Atypical law. They are called specialized. They are so named because rules of conduct are not entities in a particular situation, and contain certain provisions that effect common law. Still they are called constitutive regulations. Among the specialized law usually distinguished: 1. generally securing 2. declarative 3. definitive rules. Specialized legal requirements include operational and conflict rules. Operational standards specify the time and method of entry into force of a legal act, it applies to the new social relations, or repeal of regulatory and legal act. Conflict rules shall govern the selection of a legal rule of several laws. Generally securing laws perpetuate certain state public relations (the basis of social, economic and political systems). Declarative rules of law proclaim principles of construction and operation of public and legal reality, the challenges facing legal institutions in a particular field. Definitive rules of law legally attach certain legal concepts. Depending on the regulated public relations, from belonging to a particular area of ​​ law distinguishes norms of constitutional, administrative, civil, criminal, family, and other areas of law. There are also the substantive laws and legal procedures. Of regulation of social relations distinguish: general law and special rules of law. By the nature of binding rules of conduct are the following types of law: 1. Imperative (categorical) rule of law. Those rules cannot be changed by agreement of the parties. 2. Discretionary rules of law apply only to the extent that legal entities do not set any other rules of conduct.

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3. Recommendation law contains rules which execution is desirable, but not necessary for the state. On the scope of the law stand outside of the rule of law and internal action. It is a departmental affiliation. A circle of persons allocate the law, applicable to all persons within the territory of that State, and the rule of law extends to only a certain category of people (soldiers, pensioners, members, youth, doctors). By the time of the existing law: permanent and temporary rule of law activities. Depending on the method of expression and fixing norms are issued by public authorities and expressed in legal instruments, norms enshrined in the regulatory instruments, norms, developed judicial and administrative practices and expressed in judicial and administrative precedents, rules embodied in legal practices; standards produced by legal science, standards embodied in religious norms. Depending on the mechanism of realization of the law are the following: a continuous, ongoing action, which regulate operating continuously for long periods of time or that the social relations, discrete action to regulate social relations that arise, change and stop depending on the presence or absence of other legal facts, the will of the people. By the degree of activation of socially useful activity allocate incentive law. Depending on the nature of the object distinguish regulated public relations and social and technical rules of law, establishing rules for handling a variety of technical devices, the rules of conduct for the various natural objects. Questions for the self-control: 1. What means the «form (source) of the law? 2. What means the term «judicial precedent? 3. Please, explain the difference between the legal custom and judicial precedent. 4. Please, account all the main sources of the law. Task for srs: Please, create the table of the legal customs and normative legal acts.

CHAPTER 15

Responsibilities and ensure the structure organization of the state

1. Concept and content of state functions. 2. Classification of the functions of the state.

1. Concept and content of state functions. Functions of the state – are the main areas of activity to address the challenges ahead. According to the authoritative opinion of Doctor of Law, Professor M.N. Marchenko, «the question of the functions of the state has not only theoretical but also practical. It allows you to not only look at the state by its shape, internal structure and content, but also to consider it from the perspective of his future work, functioning. With the functions possible with sufficient accuracy to determine the nature of the state, the correct choices of them at some stage of its development priorities, finally, the level of organization and efficiency». Functions of the state are changing and unchanged, they are dynamic and subject to change and are due to both the class and its general social essence and social purpose. It should be borne in mind that the concept of a function of the state is not the same as the goals and objectives of the state, the functions of its organs. In this case, the state is to build civil society, the creation of conditions for a dignified life and free development of the individual. The objectives are the same state support of the transition to a market economy, guaranteeing freedom of entrepreneurship and free competition, the creation of

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conditions for the realization of each right to own, political reform in the public interest for the further democratization of the political system. In legal literature, there are dozens of definitions of various state functions. Here are some of them. The function of the State is a necessary, uniform, constant, purposeful direction (side) of its activity due to the objective requirements of social development in terms of its internal and external problems. It has been argued that «the main function of the State can not be considered the economic and administrative activity, for it leads to the inevitable nationalization of public life, and, as such, in a civilized society can and should be protecting people’s interests and the protection of his rights». According to the authoritative opinion of the leading jurists of the CIS countries, «state functions, this concept is not only a political and management, but at the same time, and legal, as they are carried out mainly in the legal forms. The content of each function of the state administrative activity in a particular area of ​​public life. The specificity of this activity is determined by the specific tasks that confront the society at each historical stage. Content and meaning of the state’s functions are changed during its development». Functions of the state are classified for the following reasons: the scope of the (object impact) – there are different internal and external functions, the duration of action, both permanent and temporary functions, the social significance (general and specific functions). In the legal literature, there are other classifications of state functions. So, in the book «General Theory of Law and State», edited V.V. Lazarev stand «four main functions, which are implemented by any state – economic, political, social and ideological. Other scientists are three main functions – legislative, executive and judicial powers, which correspond to the three main branches of government – legislative, executive and judicial (sometimes identified fourth function and the corresponding branch of government – the oversight)». Doctor of Law, Professor M.I. Abdulaev S.A. Komarov and call attention to the fact that «the functions of the State for this activity, but the activity itself. Activities to implement the functions filled with concrete historical content, and in the implementation of the sum of their specific ratio (the proportion of the significance of each function in the system of the other.)» 2. Classification of the functions of the state. There is the following classification of functions of government.

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1. For reasons of: deriving from the class contradictions arising from the needs of society. 2. For the basic classification: 1. Internal: a) protecting the rights and freedoms of man and citizen; b) protection of ownership; c) to ensure law and order; d) environmental; e) economic; f) social; g) the development of scientific and technological progress; h) taxation; and) cultural and educational. 2. External: a) conduct wars of aggression; b) protection of the country from foreign attack, the defense of the country; c) the maintenance of peace; d) fair trade; e) the decision together with other States the world’s problems. 3. For the duration of the action: a) Permanent, carried out at all stages of development of the state; b) The time shall cease to solve a particular problem, as a rule, which has extraordinary. 4. Least: a) basic; b) non-core. According to the Candidate of Science, Associate Professor D.A. Bulgakovoy, «the forms of the functions of the state – is a uniform activity of the state, serves as the implementation of its functions». Doctor of Law, Professor M.I. Baytin notes, «because the scope of state activity varied as public relations, for the theory of the state was a problem to determine the main directions of its internal and external operations, which are expressed and specified its class and a common human nature and social purpose». In the current conditions of the formation of law humanities raised again the question of the relationship between state and society. The process of development of the state shows that the further democratization of society in the state of law should promote the development of civil society. In this connection, the functional role of the state and

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is limited by its direct interference in social relations and individual citizens’ lives. Patterns of development of the state and society are to update the content features and removal of several functions, ie lead to a revision of the entire functional activity of the state, and, consequently, the functional role of the society. The forms of the functions of the state is a homogeneous activity of the state, serves as the implementation of its functions. Distinguished legal and organizational forms. We join in the common in the legal literature classification. The legal forms include: a) law-making – an activity to prepare and publish regulations; b) enforcement – activities for the implementation of regulations by adopting the acts of law, the daily work on the implementation of laws and solve various managerial issues; c) Law Enforcement – activities for the protection of the rights and freedoms of man and citizen, to prevent crime and to bring to justice those responsible for legal persons, etc. The organizational forms include: a) organizational and regulatory – is the ongoing work of certain structures to ensure the functioning of the State related to the preparation of draft documents, the organization of elections and the like; b) organizational and business – is operational, technical and economic work related to accounting, statistics, supplies, etc.; c) organizational and ideological – an everyday educational work on ideological enforcement of various state functions associated with an explanation of the newly issued regulations, public opinion, etc. In the historical development of state-legal situation, you should talk about the functions of the state as a public regulatory body in relation to civil society, more precisely, to the community of individuals, social groups, associations and organizations in civil society. This approach to the functions of the state assumes the distinction of civil society and the state. At the heart of the original functions of the city-state, said A.B. Vengerov pertained function information services company, due to the necessity to take into account the need for «extended family» of free farming communes. Obviously, the division of labor between state and society actually exists. E. Durkheim in his work «On the division of social labor» emphasizes: «The division of labor (functions) do not alienate both specialized units (in this case, the state and society), who were in for the duration of this division in constant communication, and the function of solidarity (mechanical or social)».

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Theory of state and law

The authors of the collective work «functions of the state in the modern world», say: «The functions of the state are complex and their formation is in the making, strengthening and development of the state. Furthermore, the functional activity of the state is to foster and promote the development of the state and society. Therefore, in our view, from the point of separation of functions between the state and society should be divided into two groups of state functions: mandatory functions of the state and functions required of the state. Mandatory functions of the state are: 1. protection of the territorial space of the state; 2. to international cooperation; 3. organization of public authorities; 4. budget control, law enforcement. These functions are identified in the mandatory, because their performance falls only on public authorities». Furthermore, they emphasize: «The functions are included in the group of functions that the state, these are functions that the state can do, with the participation of society, or rather, the structural elements of the social system. Essential functions of the state are: 1. implementation of legislative activity (in Parliament are the representatives of political parties, administrative units of the state); 2. organization of the system and the structure of government; 3. social function, which includes the social protection of citizens, social development of the country (the state together with public organizations implementing this feature); 4. promoting economic development of the country (in a market economy system state monopoly is replaced by participation in the implementation of this function as non-governmental organizations). Questions for the self-control: 1. What means the «form (source) of the law? 2. What means the term «judicial precedent? 3. Please, explain the difference between the legal custom and judicial precedent. 4. Please, account all the main sources of the law. Task for srs: Please, create the table of the legal customs and normative legal acts.

PART II

Tests

№ 1. 1 0 0 0 0 0 1 1 2. 1 0 0 0 0 1 1 0 3. 1 0 0 0 0 1 0 1

Level 1 – easy (75 questions) Theoretical and historical science:  history of State and Law  criminalistics  international public law  procurator constitutional law  forensic medicine  theory of State and Law  history of political and legal doctrines Signs of the state: public authority  functionality obligatoriness imperative democracy territorial integrity taxes legality Basic functions of the slave states: protection of private property ensuring legal equality protection and promotion of human rights maintenance of international peace the formation of a legal state protection of the rights and interests of slaveholders women’s participation in political life of society and the state systematization of customs, traditions and the enactment of laws

114 4. 1 0 0 1 1 0 0 0 5. 0 0 0 1 0 1 1 0 6. 1 0 0 0 0 0 1 1 7. 1 0 0 0 1 0 1 0 8. 0 0

Theory of state and law

Democratic republic form of government: parliamentary socialist legal mixed presidential authoritarian fascist anarchistic Internal functions of the state:  integration into the world economy  solutions to global problems  geopolitical political law enforcement social economic demographic Principles of organization and operation of the state apparatus:   professionalism  pluralism bureaucracy onerousness Unitarianism totalitarianism legality democracy Leading position in the political system of the state: has lawmaking functions generates norms of morality and ethics represents the interests of investors involved in charity protects the rights of the poor decides to peacekeeping missions in global conflicts forms ideology provides tolerance Signs of executive power: autonomous authoritarian

115

Tests

1 0 0 1 0 1 9. 0 1 0 0 1 0 1 0

sublegislative Specialization and universal operational and economic personable unitary accountable First the sources from which arose the right:  civil Code  taboos or bans  instruction philosophies manners legislation morality right

10. 0 0 0 1 0 1 1 0 11. 1 1 0 1 0 0 0 0 12. 1 1 0 0

The source of law created by the courts, is characterized by signs: adopted by the legislature court decisions necessarily imposed on the basis of religious norms not always be made in writing, can be expressed in the form of oral decisions created as a legal precedent expresses the opinion of legal scholars is a model for lower-level judges in similar cases adopted by the courts in a particular case not appealable Distinction of law and morality: define the boundaries of proper behavior and possible subjects methods of ensuring variety of social norms methods for their establishment and formation regulators of public relations fundamental general historical value streamlining and strengthening the social life do not apply to all members of society Main sources of the Roman-Germanic law:    law code corporate standards precedent

116 0 1 0 0 13. 0 0 1 1 1 0 0 0 14. 0

Theory of state and law

rules of decorum regulations orders instructions Structural elements of the rule of law:   fiction  concept hypothesis disposition sanction ideology psychology  theorem Signs of consolidation : resulting systematization published a collection of laws , collection of the legislation 0 conducted only lawmaking bodies , and only in respect of acts adopted by them 1 in this kind of systematization combined acts are repealed , instead operates a newly created regulatory act , which has its own social requisites 1 it is the most sophisticated and advanced form of systematization 0 subjects of this type of ordering can be as organs of state and public organizations and individuals 1 it is a kind of law-making reception 0 taxonomy is the result of an act of codification 0 incorporation of an element 15. Fundamental methods of legal regulation: 1 permissive 0 scientific 0 logical 1 imperative 0 recommendatory 0 prohibiting 1 regulatory 0 repealing 16. Structure of legal consciousness: 0 legal education 1 legal culture 1 legal psychology

Tests

0 0 0 0 1 17. 1 0 0 1 1 0 0 0 18. 1 0 0 0 1 0 1 0 19. 1

117

legal infantilism legal nihilism evaluation of existing law legal relations legal ideology Forms of legal education: popularization of legal knowledge by scholars retroactive effect of the law indifferent to the law dissemination of legal knowledge through the media respect for the law legal nihilism the law on the number of persons operation of law in space Legal subjects: foreign nationals private organizations behavior items of tangible benefits stateless persons private intangible benefit citizens ideology Interpretation of the law: clarification of the content of legal norms, finding will of the legislator, contained in them 0 volitional acts of human behavior, the outward expression of their will and consciousness 0 discussion of the bill 0 legal enforcement 1 activities associated with the interpretation is not any written sources, and legal acts 1 intellectual and volitional activity to establish the true content of the legal acts 0 publication in the media 0 changes and additionsсе 20. Methods of interpretation of the law: 0 casual 1 systematic 1 professional

118 0 0 1 0 0 21. 0 1 0 0 1 0 0 1 22. 0 0 0 1 1 0 0 1 23. 0 0 1 0 0 0 1 1 24. 0 1 0 0 0 1

Theory of state and law

authentic legal doctrinal historical and political logical Signs of public law: subordination of entities and legal acts equality of the parties prevalence of discretionary rules unilateral declaration of intent bilateral free will, the use of contractual forms of regulation associated primarily with the emergence and development of private property orientation is to serve the private interests apply to all subjects Signs of legal behavior: application of penalties unwanted consequences for subjects detention State-controlled regulated permissive and applicable standards binding rules violation administrative enforcement responsibility Forms of implementation of administrative responsibility: reprimand administrative arrest deprivation of special rights confiscation of property dismissal link demotion fine Political guarantees of legality: domination in society certain ideas, doctrines, views strong, reputable, legitimate power profitability degree of political stability diversity of ownership responsibility

119

Tests

1 0 25. 1 0 0 0 0 1 1 0 26. 1 1 0 0 0 1 0 0 27. 1 0 0 0 0 1 1 0 28. 1 1 0 0 1 0 0 0

democracy publicity Elements of the structure of the legal status of the person: personality basic rights and duties attitude to politics and culture legality of birth moral behavior capacity capacity place of birth General methods TGP: legalistic comparative legal statistical cybernetic idealist dialectic materialist dialectics mathematical historical Basic theory of law: patriarchal theory metaphysical theory matriarchal theory theological theory theory of rule of law the normative theory historical school of law irrigation theory Basic functions of the socialist state: the formation of a legal state safeguarding the interests of the state strengthening of civil society institutions protection of private property protection and promotion of human rights development of market relations pronatalist freedom of entrepreneurship

120 29. 0 0 1 1 0 0 0 1 30. 1

Theory of state and law

Variety of forms of government: constitutional state aristocratic republic federated state confederate state Democratic Republic constitutional monarchy absolute monarchy unitary state Contents and functions of law enforcement : protection and defense of the interests of society , the state and the individual against any unlawful attacks 0 identification and registration of state revenue producers 0 defend the country from external attacks 0 preservation, restoration and improvement of the natural conditions of human life 1 combating offenses 0 providing accurate and complete implementation of the legislative requirements of all participants in public relations 0 creating favorable conditions for entrepreneurship 1 prevention of crime 31. State aid: 1 performs strictly defined by the legislation activities 1 imperious powers vested 0 created on the basis of kinship 0 sells only the norms of morality and ethics 0 created exclusively for the realization of individual self-interest 0 provided only corporate norms 0 contained by international investors 1 constantly reformed 32. The main components of the political system: 0 political consciousness and political culture 0 political and powers 0 political rights of citizens 0 political and legal norms 1 State 0 political education of individuals and entities 1 political structure and political activity 1 religion, schools

Tests

121

33. In accordance with Article 1 of the Constitution, the Republic of Kazakhstan proclaims itself: 0 presidential republic 1 democratic state 1 unitary state 0 legal state 0 constitutional state 0 democratic republic 0 federal state 1 secular state 34. The main idea of the sociological ( wide ) approach to understanding the law: 1 right – a set of norms of state-protected 0 right – it is a phenomenon of the psyche of human beings 0 right – there is the practice of law 1 right – a system of mandatory , certain formal rules, regulations behaviors guaranteed and sanctioned by the state , having a strong-willed character 1 right – it was built in the standard justice based on the principles of equality, freedom , humanism 0 right stems from the nature of man , the human mind, universal moral principles 0 right – it’s basic moral and legal ideas and principles , natural laws 0 right – a set of customs and traditions 35. Religious legal systems: 0 Japanese right 1 Muslim law 0 Scandinavian right 0 Hindu right 1 Judaic law 1 Christian right 0 canon law 0 African Law 36. Moral and ethical standards are set: 0 corporations 1 people 0 Parliament 0 courts 1 society 0 president 0 government 1 traditions

122 37. 1 0 1 0 1 0 0 0 38. 0 1 0 1 0 1 0 0 39. 1 0 1

Theory of state and law

Sources of law relating to the regulatory acts: judicial precedent administrative precedent constitution legal doctrine law business custom resolution sentence Specialized rule of law does not contain specific rules of conduct: binding norms norms and beginings respect certain norms corporate standards definitive standards rules, principles peremptory norms regulatory standards Characteristic features of incorporation : it is the most sophisticated and advanced form of systematization taxonomy is the result of an act of codification resulting systematization published a collection of laws , collection of the legislation 0 conducted only lawmaking bodies , and only in respect of acts adopted by them 1 is essentially a kind of creation 0 subjects of this type of ordering can be as organs of state and public organizations and individuals 0 in this kind of systematization combined acts are repealed and replaced by the newly created valid normative act which has its own official details 0 it substitutes a systematization 40. The private law applies: 1 family law 1 civil law 0 constitutional law 1 private international law 0 financial law 0 criminal law 0 criminal procedure law 0 municipal law

123

Tests

41. 1 0 0 0 1 0 1 0 42. 1 0 0 0 0 1 0 1 43. 0 1 0 1 0 1 0 0 44. 1 0 0 0 1 1 0 0 45. 1 0

Types of deformation of legal consciousness: legal rebellion legal Culture legal fiction legal idealism legal infantilism legal conflict legal nihilism legal practice Indicators of legal culture of personality: respect for the right to force personal beliefs legal passivity legal practice level of excellence legislation legal practice, everyday experience legal advocacy legal nihilism legal training Juridical facts occurring independently of the will of people: arson lightning strike theft man’s death good behavior person’s birth legal responsibility dismissal Function interpretation of the law: restrictive lawmaking logical pravoobespechitelnaya doctrinal expansion methodological ontological Types of official interpretation of the law: literal interpretation authentic interpretation

124 0 0 1 1 0 0 46. 1 0 0 0 1 1 0 0

Theory of state and law

restrictive interpretation broad interpretation casual interpretation normative interpretation doctrinal interpretation judicial interpretation Methods of legal regulation: An obligation to refrain from certain actions discussion of the bill with the help of experts and professionals publication of laws recommendations aimed at solving the actual content of the rules party providing the legal relationship of subjective rights party providing legal relations legal duties changes and additions formal discussion of the bills

47. Types of lawful behavior by the degree of social significance: 1 everyday behavior , ie behavior based on the habits 0 abuse of the right – is the use of their rights and legitimate interests to the detriment of the rights, legal interests of other persons 0 arbitrariness 1 desired behavior, ie submits recommendations, incentives, promotions (births, scientific and artistic creativity) 1 admissible (of religious and national cults, pickets, demonstrations, rallies without causing harm to the public) 0 desired behavior (military service , taking care of minor children) 0 adequate behavior 0 anarchy 48. Types of misconduct: 0 legal infantilism 0 socio-active behavior 1 administrative offense 1 disciplinary offense 0 civil offense 0 felony 0 legal nihilism 1 truancy 49. Economic guarantees of legality: 1 steady growth in productivity and output 1 crisis-free development of the economy

Tests

0 1 0 0 0 0 50. 1 0 0 1 1 0 0 0 51. 0 1 0 0 0 0 1 1 52. 0 1 1 0 1 0 0 0 53. 0 0 0 1

125 decline in production lack of growth in prices economic instability reduction in the supply a decrease in demand inflation Types of legal status: individual collective imperative general special legal foreigners stateless persons Function theory of law and the state: heuristic ontological watchdog providing regulatory Parapsychological methodological dialectical Economic background of the state: prohibition of incest appearance of excess product the emergence of private property and commodity-exchange relations establishment of patriarchy allocation of public authorities Institute change of polygamous relationships monogamous transfer of power by inheritance appearance matriarchy Scientific classification, reflecting the logic of historical development that combines them into groups based on specific criteria: form of government comparative law Type of states formational approach

126 1 1 0 0 54. 0 1 0 0 0 1 1 0 55. 0 0 1 1 0 1 0 0 56. 1 1 0 0 0 1 0 0 57. 1 1 0 0 0 0

Theory of state and law

Typology of states civilizational approach historical approach legalistic approach Types monarchies: legal dualistic Democratic totalitarian parliamentary absolute constitutional autocratic Legal forms of the functions of the state: social ideological lawmaking enforcement law enforcement pravoobespechitelnaya economic political Specific signs of state authority: has a legally enforceable organizational structure formed at the behest of the state implements standards of ethics and morality formed on the basis of kinship maintained at the expense of international funding has the attributes of a legal entity exist on the basis of competitiveness it is based on the principle of election The political system of society as a collection of interacting norms, ideas, and based on their political institutions, agencies and actions, organizing: the relationship of citizens and the state political power link state and population economic power relationship of economic institutions Feedback different states

127

Tests

1 0 58. 0 0 1 0 1 0 0 1 59. 0 1 0 1 0 1 0 0 60. 0 1 0 0 1 0 1 0 61. 0 1 0 0 0 0 1 1

development of a democratic development of tolerance Basic features of rule of law: is at the heart of patriarchal theory class character of power rule of law unity of law high legal culture priority of the individual political rights and freedoms development of civil society Basic theory of the origin of law: production psychological space Marxist natural law patriarchal irrigation class Sources of Islamic law: torus Koran Talmud Arthashastra sunna Veda kiyas manners Types of social norms: usual business practices rules of conduct governing the people’s attitude to religion safety notice performance standards rules of the road engineering standards moral norms customs, traditions

128 62. 0 0 1 1 1 0 0 0 63. 0 0 0 1 1 1 0 0 64. 0 0 0 0 1 0 1 1 65. 0 1 0 0 1 0 0 1 66. 1

Theory of state and law

Legal practice: laws adopted by the State any custom that survives today customs, expressed in writing customs, expressed in a strictly defined form, state-sanctioned customs governing the conduct of people who are guaranteed power of the state repetitive actions rules dictated by the laws of nature laws, which make amendments to existing laws The form in which the rule of law elements in articles legal act: direct indirect expansion blanket literal Referential restrictive informational Lawmaking principles: concreteness professionalism validity imperative scientific expediency justice democracy Structural elements of the legal system: rule of law legislation legal relations the function of law legal system sources (forms) rights essence of the right legal regulation mechanism Signs of legal nihilism : possible absolutisation individualistic start

Tests

1 0

129

denial of the spiritual and social phenomena rational understanding of the legal reality, based on the recognition of the necessity of legal regulation 0 principles , beliefs , ideas, assessing the prospects for the evolution and continuous development of the law 0 systematic , scientifically based , theorized reflection of legal phenomena in their entirety and integrity 0 intolerance towards offenders 0 scientific generalization of the political and legal development of the society in its inseparable connection with the state and the law 1 denial of social ideals and values 67. Types of legal culture depending on the media: 1 Group legal culture 0 legal legal culture 0 casual legal culture 0 public legal culture 0 regulatory and legal culture 1 doctrinal legal culture 0 authentic legal culture 1 Western legal culture 68. Signs of a subjective right: 1 legal responsibility 1 measure the possible behavior 0 measure the required behavior 1 the obligated person has no choice between performance and dereliction of duty 0 provided a public censure 0 personality 0 legality 0 constitutional duties 69. Types of informal interpretation: 0 authentic 1 group 1 everyday 0 individual 0 doctrinal 1 corporate 0 official 0 court

130 70. 1 0 0 1 0 1 0 0 71. 1 0 0 0

Theory of state and law

Methods of interpretation of the law: systematic doctrinal authentic casual legal grammatical historical and political legal Key stage mechanism of legal regulation: discussion and voting promulgation of laws establishment of facts establishing a specific legal relationship with the division on subjects empowered and obliged 1 stage of legislative initiative 1 publication of laws 0 amending 0 veto 72. Types of lawful behavior: 0 culpable conduct 1 legal behavior 1 causal behavior 0 conformist behavior 0 wrongdoing 1 normative behavior 0 corporate behavior 0 immoral behavior 73. Measures of disciplinary liability: 1 termination of employment 0 administrative arrest 0 indemnification 1 demotion 0 death penalty 1 reprimand 0 imprisonment 0 promotion 74. Guarantees of legality: 1 relative

131

Tests

0 1 0 0 0 1 0 75. 0 0 0 0 0 1 1 1

contractual legal psychological economic enforcement absolute temporary Human Rights: human dignity incapacitation person legality of birth nationality natural abilities of the individual freedom and personal security freedom of entrepreneurship social and political Уро­вень 2 – сред­ние (150 воп­ро­сов)

76. 0 0 1 1 0 0 0 1 77. 0 0 1 0 0 0 1 1

Understood as the principle of complexity in the study of state-legal phenomena? consideration of public-legal phenomena from the perspective of the past consideration of public-legal phenomena as separate , unrelated phenomena of social life as a requirement of an objective approach as the need to consider public-legal phenomena in relation as a movement in time and space as requiring a subjective approach as circular movement of persons as the need to consider public-legal phenomena as holistic education What do you call a method of studying the theory of state and law, which is to review the state-legal phenomena in terms of their past and expected future? functional method systematic method method of historicism synthesis analysis legalistic comparative legal prognostic

132 78. 0 1 0 0 0 1 1 0 79. 0 1 1 1 0 0 0 0 80. 0 1 0 0 0 0 1 1 81. 1 0 0 0 0 1 1 0

Theory of state and law

Which of the following causes of the state is the main terms of the formation approach ? state arose as a result of the social contract social division of labor , the emergence of private property , the appearance of classes – antagonists state is the result of divine will state arose as a result of expansion of the family state arose as a result of the capture of some other tribes state arose as a result of the socio- historical formations state arose as a result of slaveholders and slaves state arose as a result of the collective agreement Science about the origin, development and functioning of the state and law – is: sociology of Law history of political and legal doctrines Universal History of State and Law General Theory of State and Law political science philosophy mathematics physics What do you call a method of studying the state-legal phenomena consists in the study of public opinion? comparative sociological dialectical materialism logical historical materialism psychological telephone survey public discussion Which of the methods used to analyze the similarities, differences and classification of legal phenomena? comparative cybernetic mathematical sociological logical analysis synthesis philosophical

Tests

133

82. 1 0 0 0 0 1 1 0 83.

Which of these signs is the core concept of the state? public authority associate membership residents subjection to certain rules of human behavior majority rule joint activity territorial organization of citizens payment of taxes irrigation works Which of the following definitions state correctly reflects the current understanding of it ? State aid is violence of one class over another State is a way of bringing people together to live together State is an alliance of people united by common ideas for restructuring the world State is a tool to suppress dissent in society State is a means of social compromise that connects people based on the laws State is a voluntary association of people State is the political organization of society State is a form of civil society Which of the theories of the origin of the state more objectively considering its causes? theological negotiated psychological historical-materialist theory of violence marsksistskaya materialistic irrigation Which of the following features is unique to the state? availability leader bringing people to live together and joint activities Availability Programme of Action and Development Strategy lawmaking adoption of the regulations and other statutory instruments payment of taxes public authority the existence of private property

0 0 0 0 1 1 1 0 84. 0 0 0 1 0 1 1 0 85. 0 0 0 1 0 1 1 0

134

Theory of state and law

86

Supremacy of state power in relation to other types of power, and also in relation to other states, denoted by the term: sovereignty legality legal status legal order stability legal culture competence scope To what form of state, the proposed classification, including China, Japan, India? Roman Athenian European eastern German Orientalist non-Western african Which of the following theories explain the origin of the state law enslavement of some tribes and other wars of conquest? Marxist natural law theory of violence psychological negotiated barbaric sociological theory of capture and enslavement What was the main cause of the German state? the need for public works transition from appropriating economy to producing class contradictions capture and annexation of foreign territories scientific – technical progress penetration within the other tribes war barbarian tribes the emergence of private property

0 1 0 0 0 0 1 1 87. 0 0 0 1 0 1 1 0 88. 0 0 1 0 0 1 0 1 89. 0 0 0 1 0 1 1 0

Tests

135

90.

Which of the following countries was the result of internal contradictions, ie classical way (following Engels’ Origin of the Family, Private Property and the State)? Egypt Athens Germany India China Sparta Greece Rome Highlight the main feature of the state (political) power, which distinguishes it from other types of public authority: coincidence with the population the power of authority leader Availability of public authority availability leader expression of the interests of any one group of people possibility of coercion emergence of laws domination of the customs and traditions Which of the theories of the origin of the state treats appearance as a continuation of the power of his father, that overgrown family? negotiated theological patriarchal theory of violence Marxist paternalistic power of the householder psychological Types of systematization of legal acts: collision delegated legislation consolidation authorization codification referendum incorporation fiction

0 1 0 0 0 1 1 0 91. 0 1 1 0 0 1 0 0 92. 0 0 1 0 0 1 1 0 93. 0 0 1 0 1 0 1 0

136 94. 0 0 0 0 1 1 1 0 95. 0 1 1 0 0 1 0 0 96. 0 1 0 0 1 1 0 97. 0 0 0 1 0 1 0 0 98. 0

Theory of state and law

Which of these theories explains the origin of the state properties of the human psyche, human need to live in a collective, his desire to seek the authority: negotiated patriarchal theory of violence theological psychological psycho-emotional psychosocial Marxist Which of the following reasons was the main cause of the Athenian state? division of society into antagonistic classes opposite population will expansion of the tribal community and the search for more powerful authority sedentary the need for public works contract first laws divine will The names of any figures associated reforms in the Athenian state? Democritus Theseus Socrates Plato Cleisthenes Solon Aristotle Highlight the main feature of a public authority, allowing him to take legally significant decisions on behalf of the state: availability of budget availability Print special structural organization authority, based on the laws Community Relations competence legal regulations elected nature state employees In which of the definitions of the state expressed the essence of the Marxist approach to the state?  the state is an institution of social compromise and achieving social benefits

Tests

1

137

State is a machine for the oppression of one class by another , in order to maintain economic dominance class of owners 0 State is the best way of organizing people’s lives for their social benefits , the most just form of exercising power 0 state is a way to preserve the territory by combining population 0 State is a way to unite families in a large area 1 State is the subordination of citizens to the ideals of socialism 1 State persecution of dissent , censorship 0 State procedure is complete withering away at a certain stage of development 99. How does the concept of designated political regime and way of forced population subordination of state power? 1 diktat 0 protectorate 0 sovereignty 0 Principate 0 paternalism 1 dictatorship 1 authoritarianism 0 fascism 100. What do you call a political and legal relationship with a certain person by the state? 1 status 0 competence 0 warranty 1 citizenship 0 legalization 1 dual citizenship 0 extradition 0 intervention 101. Which of thetheoriesargued thatpoliticalpower should belong tothe economicallydominant class? 1 Marxist 0 natural law 0 idealistic 0 patriarchal 0 Negotiable 1 dialectical 0 sociological 1 class

138 102. 1 0 0 0 0 1 1 0 103.

Theory of state and law

As indicated by the concept of popular sovereignty in the theory of law? sovereignty of the people and the rule in making fundamental decisions independence of the population from the government opportunity to participate in business people’s right to territorial separation the right to an adequate standard of living popular sovereignty national sovereignty state sovereignty What do you call a scientific approach, according to which type of state is determined by the type of production relations, the nature and level of development of productive forces? 0 civilizational 1 formational 0 sociological 0 chronological 0 historical 1 socio-economic system 0 legal 1 mode of production 104. Which of the following features is crucial to the characterization of the state of the exploitative type? 0 equality of all before the law and court 0 social compromise, consent 1 class domination 0 law and order 0 political and ideological diversity 1 violence 1 suppression 0 lack of equality of citizens 105. Scientific approach, according to which the basis for defining the type of state put a certain level of material and spiritual culture of the people: 1 civilizational 0 formational 0 sociological 0 chronological 0 historical 1 Culture and History 1 traditional 0 class

Tests

106. 1 0 1 0 0 1 0 0 107. 0 0 0 0 1 1 1 0 108.

139

Highlight the most characteristic feature of the ancient Oriental slave states: the existence of remnants of the primitive communal system protection of human rights and freedoms private ownership of land active public participation in the formation of state structures political pluralism irrigation works emergence of legal codifications transfer of power by inheritance Highlight the most important function of a slave state equality of citizens before the law and the courts protection of the rights of the poor ensuring equality social function protection of private property adoption of laws protection of the rights of slaveholders political function Which of the following factors largely determined the shape of state of Saudi Arabia? 0 territorial 1 geographic 1 religious 0 political 0 social, external 1 climate 0 economic 0 historical 109. What were the main reasons for the formation of the state of the ancient Romans? 1 struggle between the patricians and plebeians 0 conquest of the territory of other tribes 0 specialization of social labor 0 replacement appropriating economy generating 0 emergence of monogamous family 1 the emergence of private property 0 lawmaking 1 protection of private property

140

Theory of state and law

110. Type the state in which the public authorities are fused with the apparatus of private power, thereby providing an essential principle and immediate political power supplies landlord: 0 slave state 1 feudal state 0 bourgeois state 0 socialist state 0 legal democratic state 1 medieval state 1 European state 0 primitive state 111. Who laid the theoretical foundations of the socialist state? 0 Aristotle, JJ Rousseau 1 Marx 0 Sh.Monteske 0 G.Grotsy, Hobbes 0 A.Radischev, L.Gumplovich 1 Engels 1 Lenin 0 Dzh.Lokk 112. What is meant by socio-economic formation in the theory of law ? 1 historical type of society based on ownership and a certain mode of production 0 various historical periods of social development , which is characterized by its level of spiritual development 0 ideal type of the State in which human rights are respected 0 element forms of state 0 forms of the various states 1 a certain level of development of productive forces 1 a certain level of production relations 0 method of forming a state authority 113. Highlight important specific feature of early class society in the East: 0 democratic way of formation of state power 1 Asiatic mode of production 0 private ownership of land 0 broad public participation in the management of the company 0 equality of all before the law 1 communal character of the device life 1 irrigation works 0 transfer of power by inheritance

Tests

114. 0 1 0

141

Highlight the most important principle of the feudal type of state: legal equality of citizens before the law and the courts principle of vassal the principle of representation of all segments of the population in the state bodies 0 the principle of separation of powers 0 the principle of democracy and human rights 1 matching amount of land the size of government 0 observance of the principle of checks and balances 1 leases 115. Which of the following States in the form of government is a parliamentary republic? 0 The Russian Federation 0 The Republic of Kazakhstan 0 USA 0 Germany 1 France 1 The Kyrgyz Republic 1 United Kingdom 0 The Republic of Uzbekistan 116. Temporary alliance of states, united voluntarily to meet the common interests of the political, economic, and political nature: 0 unitary state 0 federated state 0 national-territorial federation 1 confederation 0 empire 0 monarchy 1 military Confederation 1 temporary military alliance 117. Which species belongs Confederation following definition: «The union of two states, based on a contract, according to which the stronger state is obligated to provide weaker protection in the form of economic and cultural assistance, armed protection, representation in domestic affairs?» 0 interstate unions; 0 federated state 1 union 0 protectorate 0 empire 0 triumvirate

142 1 1 118. 0 0

Theory of state and law

confederation temporary military alliance Highlight feature presidential republic: absence of the parliament parliamentary responsibility of the government, the formation of a coalition based on its 1 extraparliamentary method of electing the President 0 formation solely by the President of the Parliament 0 government can be dismissed by Parliament 1 opportunity to dismiss the government 1 appointment and removal of officials from office 0 lack of government 119. Which of the following applies to the federated states? 0 France 0 England 0 Italy 1 USA 0 Japan 1 The Russian Federation 1 Germany The Republic of Kazakhstan 120. Highlight of the signs of the dictatorial regime: 0 separation of powers 0 a real opportunity to influence the formation of public authorities 0 ability to influence the adoption of the most significant decisions for the state 0 political pluralism and media freedom 1 the rights and freedoms receives legislative recognition 1 censorship 1 Mass arrests of people 0 observance of the principle of checks and balances 121. What can not be a sign of a democratic regime in the modern state? 0 freedom of speech 0 universal and equal suffrage 0 separation of powers 1 violations of human rights and freedoms 0 political freedom for the opposition 1 illegal arrests 1 executions without trial 0 pluralism

Tests

143

122. How the concept denoted structure, formation, organization and interaction of the higher authorities of the State: 0 legal system 0 sovereignty 0 legitimacy 1 constitutionality 1 government 0 legality 1 form of government 0 publicity 123. Structure of the highest state authorities, the order of their formation and the distribution of competences between the concept denoted: 0 capacity 0 form of government 0 state and political regime 1 government 0 political system 1 forming method 1 procedure for substitution 0 reporting 124. What form of government is inherent in such a feature, as the head of state legal irresponsibility? 0 Democratic People’s Republic 0 presidential republic 0 mixed Republic 1 absolute monarchy 0 parliamentary republic 1 monarchy 1 constitutional monarchy 0 authoritarian state 125 Called as a form of organization of state power in the states of the East, where the absolute monarch entirely relied on the power of the military-bureaucratic apparatus? 0 People’s Assembly 1 oriental despotism 0 aristocratic republic 0 constitutional monarchy 0 estate-representative monarchy 1 irrigational State 1 Office management 0 absolute monarchy

144

Theory of state and law

126. When any form of territorial structure of the state and other public entities are combined on the basis of the Constitution and the treaty, maintaining its sovereignty and with their higher authorities? 0 unitary state 1 federated state 0 confederation 0 autonomy 0 empire 0 monarchy 1 national Federation 1 federation 127. What form of government persists in modern European states, where power and formal head of state is stored in the power of tradition? 0 absolute monarchy 0 estate-representative monarchy 0 oriental despotism 0 limited monarchy 1 constitutional monarchy 1 power of the king 1 authority of the Crown Prince 0 republic 128. At what form of government the state power is twofold, Parliament adopts laws governing the country through the monarch appointed by and responsible to him the government? 1 dual monarchy 0 absolute monarchy 0 estate-representative monarchy 0 republic 0 oriental despotism 1 dual monarchy 1 monarchy with signs and absolute and constitutional 0 tyranny 129. Name the kind of form of government where the head of state at a certain parliamentary participation forms the government, which is responsible to them and they can also be dismissed: 0 parliamentary republic 0 aristocratic republic 0 mixed Republic 1 presidential Republic 0 absolute monarchy

Tests

0 1 1 130.

145

estate-representative monarchy Republic, led by the Head of State republic, where the head of state forms the government What do you call a form of government, which is characterized by the sovereignty of the monarch, the constitution and the parliament are missing? 0 constitutional monarchy 1 absolute monarchy 0 republic 0 estate-representative monarchy 0 feudal monarchy 1 monarchy headed by King 1 monarchy headed by Queen 0 oriental despotism 131. How does the concept of designated territorial organization of the state, the ratio of the state as a whole and its components? 1 state and political regime 0 state mechanism 1 government 0 credentials 1 form of government 0 functions of the state 0 legal regulation mechanism 0 competence 132. What do you call a form of government in the modern United Arab Emirates, in which seven emirates united and power belongs collegial body, the Council of the emirs of seven emirates united and assign them to Parliament? 0 unitary state 0 federated state 1 confederation 0 Commonwealth of Independent States 0 empire 1 sultanate 1 emirate 0 triumvirate 133. Form of government in which the supreme bodies of state and the head of state elected for a certain period of population and state power is exercised on behalf of the people: 0 estate-representative monarchy 1 republic 0 absolute monarchy

146 0 0 1 1 0 134. 0 0 1 0 0 1 1 0 135.

Theory of state and law

feudal monarchy dual monarchy presidential Republic parliamentary Republic constitutional monarchy What should be understood as a form of public-political regime? procedure for the formation of public authorities national-territorial structure combination of techniques for exercising state power structure of local government form and manner of formation of the state set of methods for organizing the government a set of techniques for organizing the government structure of public authorities Which of the following features characterizes democratic political and legal regime? 0 monocracy 1 legal opposition parties 0 concentration of state power in one state body 0 restricting the activities of trade unions and political parties 0 formal statement of the rights and freedoms of citizens and their violation 1 protection of the rights and interests of citizens 1 rule of law 0 a regime of terror and violence in society 136. Methods and ways of realization of the government covered by the concept: 1 form of government 1 government 0 type of state 1 state and political regime 0 competence 0 sanction 0 nihilism 0 form of government 137. What do you call a form of state-territorial structure of the state, consisting usually of administrative-territorial units, otherwise it is called one and indivisible? 0 federation 1 unitary state 0 confederation

Tests

0 0 1 1 0 138.

147

Commonwealth of Independent States national-territorial federation simple state unitary and indivisible state customs union What form of association (union) does not create a single constitution and a single citizenship, and created for the implementation of political and economic problems? 1 confederation 0 federation national Federation 0 unitary state 0 empire 1 military Confederation 1 temporary Confederation 0 tyranny 139. What form of government was established in Russia after the October 1917 according to the Marxist-Leninist doctrine of the state and the law? 0 bourgeois republic as a transitional form of government 0 constitutional monarchy 1 Soviet republic 0 presidential republic 0 parliamentary republic 1 republic of workers and peasants 1 dictatorship of the proletariat 0 absolute monarchy 140. Reflecting such a category as «a form of state-territorial structure»? 1 method of forming higher authorities 0 techniques and methods for the implementation of operational activities of the state executive 0 criteria typology State 0 composition of the government and other executive bodies 0 features of the internal organization of the state 1 method of formation of government bodies 1 method of forming a power structures 0 constituent parts of the state 141. What form of government characterized by such features as the government and the election of the President of the Legislative Assembly and the first legal responsibility to the legislature? 1 parliamentary republic absolute monarchy 0 dual monarchy

148 0 0 1 0 1 142. 0 0

Theory of state and law

constitutional monarchy presidential republic Democratic Republic republic of Soviets republic with a parliamentary majority What feature of the totalitarian state and political regime? it differs in the predominance of liberal and democratic ideas it creates the conditions for the free and full development of personality , human rights are respected 1 in hypertrophied role of the state , the concentration of power in the hands of the ruling elite 0 State ensures the rule of law and equality of all citizens 0 authorities are interested in the broad participation in the formation of power and control over her 1 censorship 1 in the persecution of dissent 0 in the formation of a civilized civil society 143. Function of the state , which is in the publication , modification or revocation of legal acts is : 0 enforcement 0 operational and executive 0 law enforcement 1 lawmaking 0 organizational 0 pravoispolnitelnaya 1 legislative 1 representative 144. Which of the activities included in the maintenance of the social functions of the state? 0 law enforcement 0 protection of nature and cultural monuments 0 collection of taxes and customs duties 1 support of the poor and vulnerable 0 establishment of the army and the country’s defense 1 pensions 0 punishment of offenders 1 solution of demographic problems 145. Which of the following is included in the content of the economic functions of the state? 0 ensuring national consensus

Tests

1 0 0 0 1 1 0 146.

149

attraction of foreign investments culture and arts poor social support policing development of small and medium-sized businesses freedom of entrepreneurship establishment of the army and the country’s defense The main activities of the state, expressing the goals, objectives to manage the company, designated by the term : 1 functions of the state 0 personality 0 sovereignty 0 political system 0 relationship 1 main directions 0 legal Culture 1 activities of the State 147. How to is a function of the state, which is the content of state activity on health and safety of people , the establishment of a guaranteed wage, pension, development of the system of social services, etc.? 0 economic function 0 function integration into the world economy social function 0 conservation and protection of the rights and freedoms of citizens, of all forms of property and the rule of law 0 function of international cooperation in the sphere of politics 1 public function 1 development of social services 0 political function 148. How is the function of the state, the content of which is the organization of production , the development of commodity – money relations and the formation of the market of goods and services ? 0 social 1 economic 0 financial control 0 taxation 0 lawmaking 1 market 1 strengthening the material – technical base 0 enforcement

150

Theory of state and law

149. Highlight the main activity of the state, was a more effective implementation of the interests of the Republic of Kazakhstan in the field of economy, trade, business in the international arena : 1 WTO accession and integration into the world economy 0 establishment of structures for the systematic solution of ecological problems 0 formation and replenishment of the state treasury 0 promotion of private enterprise 0 involvement in social production unemployed able-bodied population 1 entry into the customs union 0 labor migration 0 creation of an economic union based on the Central Asian republics 150. Which function includes the activities of the State to participate in the various political, military and economic alliances with other states? 0 in function of social control in the law-making function 0 in economic function 0 a social function, ie support socially vulnerable 1 function in peace and cooperation with other countries 1 in strengthening the defense function 1 function in ensuring good neighborly relations 0 in function of parliamentary control 151. Advantageous embodiments of the functions of government in a democratic society 0 coercive 1 legal 0 administrative-command 0 supervisory and control 0 organizational 1 legal 1 legal 0 political 152. What is meant by the law enforcement activities of government ? 0 activities to establish control over the observance of morality 0 1 0 0 1

and customs activities on state ideology Follow-laws economic and organizational activities organizational and regulatory activities work for the establishment of law and order

Tests

151

1 activities on supervision of legality 0 socio -educational activities 153. Which of the organs of the state function as financial control and replenishment of the country? 0 courts 1 tax committees 0 Department of Justice Maslikhats and governorates 0 police and army 1 tax inspections 1 court of auditors 0 prosecutor’s office 154. What is the purpose of the prosecution of RK? 0 exercise of the judicial function 0 exercise of the legislative function 0 implementation of the ideological function of 1 oversee the strict observance of laws 0 implementation function of investigation preliminary investigation 0 exercise of executive functions 1 overseeing steady observance of laws 0 control and supervision of law enforcement agencies 155. Which of these powers does not fall within the competence of the President of the Republic of Kazakhstan? 0 publication of acts of amnesty 0 publication of decrees 0 signing laws 0 akim’s appointment 1 resignation of the government 1 publication of the verdict 1 seizure of property 0 Ratification of international treaties 156. Who owns the idea of separation ​​ of powers into three branches? 0 Engels 0 Marx 0 J. Bodin 0 Hugo Grotius 1 Sh – L.Monteske Aristotle 1 Thomas Jefferson 0 Lenin

152

Theory of state and law

157. To exclusive jurisdiction of any authority relates bringing charges against the President of the RK treason 0 Supreme Court of the Republic of Kazakhstan 0 Constitutional Council of the Republic of Kazakhstan 0 Ministry of Justice 1 Senate 0 Majilis 0 General Prosecutor’s Office of Kazakhstan 1 Legislative authority 1 RK Parliament 158. The independence of judges is : 1 judges are independent 0 The judge has immunity 0 Judges are subject only to the superior courts 0 Judges are subject to the prosecution 1 Judges are guided only by their sense of justice 0 Judges are appointed for life 1 Judges are guided only by laws 0 Judges apply the laws and regulations 159. Inquiry and preliminary investigation of the crimes committed in the Republic of Kazakhstan is carried out: 0 any law enforcement authorities 1 bodies of internal affairs 0 RK courts 0 prosecutors 0 bodies of notaries 1 departments of inquiry 0 OCS pre-trial authorities 160 Who is in the Constitution has the right to appoint the Chairman of the Constitutional Council of the Republic of Kazakhstan 1 Kazakh President 0 Kazakh Parliament 0 Ministry of Justice 0 Prosecutor General of Kazakhstan 0 President of the Constitutional Council shall be elected by the members of the Constitutional Council of the Republic of Kazakhstan 1 head of state 1 Turkmen leader 0 The Supreme Court of the Republic of Kazakhstan

Tests

161. 0 0 0 1 0 1 1 0 162. 0 0 0 1 0 1 1 0 163. 0 0 1 0 0 1 1 0 164 1 0 0 0 0 1 1 0 165. 0

153 Central authority exercising supreme supervision over the legality , is : Ministry of Justice The Supreme Court of the Republic of Kazakhstan The Government of the Republic of Kazakhstan General Prosecutor’s Office of Kazakhstan Kazakh Parliament State-legal department of the Presidential Administration Collegium of the Supreme Court Prime Minister of Kazakhstan What do you call a local representative body ? akimat Majilis parliament maslihat Senate District maslihat rural maslihat state notary’s office Part ( member) state mechanism in authority and acting on behalf of the state : political party trade union State authority labor collective administration of state institutions District akimat regional administration public Association Who appointed regional governors and republican cities by the Constitution ? President on the Prime Minister’s Government by the President of the Republic of Kazakhstan President of the Senate State Secretary of the Republic of Kazakhstan RK Parliament The Head of State leader of the nation Prosecutor General of the Republic of Kazakhstan As in the theory of the state is called the system of state bodies with powers and acting within its jurisdiction ? Soviets of People’s Deputies

154 0 1 0 0 0 1 1 166.

Theory of state and law

legislative assembly state machine officials rulers advocacy executive state and local control How is called the principle of organization and operation of the state apparatus of requiring a strict and steady implementation of laws ? 0 The principle of openness 1 the rule of law 0 the principle of humanism 0 principle of Unitarianism 0 the principle of respect for human rights 1 principle of legality 1 the rule of law 0 principle of bureaucracy 167. How the concept denotes the set of powers ( rights and obligations ) , which has a public body or official : 1 competence 0 contract 0 prerogative 0 veto 0 legislative leadership 1 credentials 1 scope 0 personality 168. Which of the following is the body of general jurisdiction ? 0 Ministry of Finance 1 government 0 Ministry of Internal Affairs 0 MOE 0 prosecutor’s office 1 cabinet 1 executive 0 state notary’s office 169. Who is in the Constitution has the right to appoint the Prosecutor General of Kazakhstan ? 1 President with the consent of Parliament

Tests

0 0 0 0 1 1 0 170. 0 0 0 0 1 0 0 1 171.

155

Kazakh Parliament alone Department of Justice subordinate prosecutors selected members of the Constitutional Council head of state Leader of nation Judge To submit to the courts in the Republic of Kazakhstan Chairman of the Supreme Court Chairman of the Upper House of the Parliament of the Republic of Kazakhstan Minister of Justice the Prosecutor General only to the Constitution and the law Prosecutor lawyer Chief Judge of the republic Body , whose mandate includes decide questions of war and peace in the Republic of Kazakhstan , is : 1 parliament 0 President alone 0 The Constitutional Council 0 Supreme Court 0 Department of Justice 1 The Legislature 1 representative body 0 prosecutor’s office 172. In accordance with the principle of separation of powers, the President of the Republic of Kazakhstan : 1 ensure coordinated functioning of all branches of government 0 forms a system of executive bodies from top to bottom 0 headed by the legislature 0 headed by the judiciary 0 the Chairman of the Government 1 provides a system of checks and balances 1 provides the principle of social justice 0 protects the external borders of the state 173. Which of the following bodies, is a representative that is elected ? government 0 Department of Justice

156 1 0 0 1 1 0 174

Theory of state and law

maslihat administration of the President administration akimat District maslihat regional maslihat courts Variety executive bodies established by the government for the individual functions : 0 courts 1 Ministry 0 prosecutor’s office 0 maslikhats 0 parliament 1 agencies 1 departments 0 governorates 175. Public authority registering public associations under the laws of RK: 0 militia 0 state notary’s office 0 prosecutor’s office 1 Department of Justice 0 government 1 Department of Justice 1 Department of Justice 0 courts 176. Which one of the officials responsible for the security of the country , is the supreme commander of the army in Kazakhstan ? 0 Chairman of the Senate of the Parliament of Kazakhstan 1 Kazakh President Defense Minister 0 Security Council Secretary RK 0 KNB Chairman RK 1 head of state 1 Turkmen leader 0 Chairman of the Supreme Court 177. The highest representative body exercising lawmaking in Kazakhstan is : 1 parliament 0 president 0 The Constitutional Council

Tests

0 0 1 1 1 178. 0 0 1 0 0 1 1 0 179. 0 0 0 1

government Supreme Court The supervisor Senate Majilis Constitutional Council of Kazakhstan consists of : five members six members seven members eleven members president and five members 7 members 6 members and Chairman eight members Formed as a local representative body ( maslihat ) in Kazakhstan ? deputies appointed by the President Parliament elects appointed by the government elected by the people appointed Akim 1 elected local 0 elected under the leadership of local government offices 0 appointed by the President 180. The highest executive authority in the Republic of Kazakhstan is : 0 Department of Justice 0 Supreme Court 1 government 0 General Prosecutor’s Office 0 parliament 1 cabinet 1 Prime minister 0 Kazakh President 181. Which authority belongs exclusively to Parliament ? 0 akim’s appointment 0 pardon to citizens who have committed crimes 1 approval of the budget of the country 0 appointment of ministers 1 shipping in the resignation of the government 1 adoption of laws

157

158 0 0 182. 0 0 0 1 0 1 1

Theory of state and law

appeals amnesty Which of the senior officials have the right suspensive veto on the Constitution? Chairman of the Senate of Kazakhstan Chairman of the Majilis of Kazakhstan Prosecutor General of Kazakhstan Kazakh President President of the Constitutional Council of the Republic of Kazakhstan head of state Leader of nation Chairman of the Supreme Court 183. What is the fundamental difference between the state of the other organizations participating in the political system of society, such as political parties ? 0 act warranted by law 0 is an associate member of international organizations 0 completeness and the rule of power within the country and abroad 0 unites its members to address the pressing problems 1 Available governing bodies 0 represents the interests of different groups 1 available special structural organization 1 existence of a special unit of the State 184. Highlight of the listed activities are those which consist in determining the policy of the state ? 0 law enforcement 0 administration of justice 1 development strategy for the coming years 0 activities of law enforcement 0 lawmaking 1 the formation of the state ideology 1 annual President’s Address to the people 0 supervisory activities 185. What is the name of the organization and activities of the principle of the state apparatus, which consists in the requirement to act strictly within its mandate? 1 principle of legality 0 principle of feudalism 0 principle of inevitability of punishment 0 the principle of democracy 0 the principle of separation of powers 1 the principle of democracy

Tests

159

0 principle of inevitability of punishment 1 principle of professionalism 186. The main feature of the state body , allowing him to take legally significant decisions on behalf of the state: 0 availability of budget and finance 0 organizational structure 1 authority 0 availability management 0 availability Print 1 competence 1 scope 0 State. registration 187. What is meant by the term « executive authorities «? 0 way of organizing public authorities 0 constituent parts of the state 0 territorial structure of the state 1 apparatus of government 0 political system of society 1 state machine 1 local authorities and management 0 taxes 188. Legal practice is : 1 Customs, expressed in a strict form of state -sanctioned force 0 Customs, expressed in writing 0 Any custom that survives today 0 Oral decree, order official 1 Customs governing the conduct of people who are guaranteed power of the state 1 Business practices 0 Multiple repetitive action 0 Laws adopted by the State 189. Which branch of government bodies include prosecutorial oversight ? 0 to the executive branch to the legislative branch 1 this special purpose bodies 0 to the judiciary 0 to both judicial and executive 1 to the supervisory 1 to control 0 to law enforcement

160

Theory of state and law

190. How the concept denotes the set of public bodies performing a function of the state? 0 political system 0 political organization of society 1 state machine 0 power structure 0 political regime 1 mechanism of the state 1 state authority 0 legal system 191. How the concept denoted otherwise exclusive authority of a public body or official? 0 separation of powers 1 prerogative 0 status 0 vlegitimacy 0 legality 1 competence 1 field of action 0 democracy 192. Which of the government officials in Kazakhstan has the right to sign laws? 0 President of the Senate 0 President of the Constitutional Council 1 president Prime Minister or his deputy 0 Any higher official 1 head of state 1 Leader of nation 0 Chairman of the Majilis 193. Who may be appointed parliamentary elections of Kazakhstan ? 0 people on the basis of the referendum results 1 President 0 constitutional Council 0 Government with the consent of the «old» Parliament 0 political parties 1 The Head of State 1 leader of the nation 0 Parliament

Tests

194. 0 0 1 0 0 1 0 1 195.

161

Head of the district executive appointed by the Constitution : Prime Minister President akim elected by the people maslikhat akim President of the Senate mayor On what authority vested with the approval of national taxes on the Constitution? 0 Ministry of Economy and Budget Planning 0 government 0 Agentstvo Strategic Planning 0 parliament 1 Ministry of Finance 0 Department of Justice 1 finance Ministry 1 Department of Finance 196. Moral and ethical standards are set: Communities, social groups 0 corporations 0 law 0 Parliament 0 courts 1 people 1 Company 0 President 197. Which authority on the Constitution , says the government’s program for five years? 1 parliament 0 Home Office 0 courts 0 constitutional Council 0 administration of the President 1 legislature 1 representative body 0 government

162

Theory of state and law

198. Who makes the decision to terminate the powers of local representative bodies ( maslikhats ) ? 0 president 0 parliament 0 government 0 The Constitutional Council 1 Akim 1 Head of the District 1 Mayor 0 prosecutor 199. Who decides on the granting of citizenship and political asylum in Kazakhstan? 0 parliament 0 president 1 Department of the Interior 0 government 0 Embassies and Consulates 1 The Department of the Interior 1 Department of the Interior The courts 200. What is meant by the inauguration of the President ? 1 procedure inauguration 0 location of residence 0 badge head of state 0 veto 0 set of powers 1 adjuration 0 Availability Standarte as symbol of power 0 renunciation of office 201. Which of the following powers belong exclusively of the Majilis of Kazakhstan? 0 Adoption of the Constitution of the country 1 for a discussion of the laws 0 giving consent to the appointment of the Chairman of the Supreme Court 0 announcing regular elections of the President 0 approve the budget of the country 1 adoption of laws 1 amendments and additions to the laws 0 ratification of international treaties

Tests

163

202. Which of the functions of the state can be attributed to external functions of the state? 0 social function and the development of science 0 the function of maintaining national harmony and stability 1 disarmament and nuclear arms reduction 0 the function of protection of property rights and management of economic relations 0 ecological function , ensure the normal habitat 1 of international cooperation 1 the struggle for peace and nuclear disarmament 0 Economic function 203 As indicated by the term «referendum»? 0 legislature country 0 president’s message to the people 0 governmental hour in Parliament 1 way to the adoption of laws or other important public decisions 0 the order of the inauguration of President 1 popular vote 1 important decisions population 0 report deputies 204 When introduced the institution of the presidency in Kazakhstan? 0 to 1993 0 to 1990 0 to 1986 0 to 1992 1 to 1991 0 to 1994 1 April 1991 0 22 years ago 205 In which of these states no such actors of the political system as trade unions and political parties : 0 United Kingdom 0 Kazakhstan0 1 United Arab Emirates 0 France 0 USA 1 Thailand 1 Sultanate 0 Germany

164 206 1 0 0 0 0 1 1 0 207

Theory of state and law

Fundamental in the characterization of civil society is: dominance of private interests, the free development of personality domination of one ideology administrative command methods of economic management to restrict the rights and freedoms of citizens in the public interest penetration state in all spheres of public life priority of the rights and freedoms democratic ideals and values censorship Highlight the correct definition of power as a general sociological and legal category: 1 power is people’s desire for compromise 0 is – a way to achieve good 0 is – a stable relationship of the citizen and the state 0 Is – corresponding to the level and nature of public life management tool 0 this – way relationship of population and government agencies 0 is a rule of conduct that regulates social relations 1 power is people’s desire for consensus 1 power is people’s desire for tolerance 208 Which of the following States in the form of government is a constitutional monarchy? 1 1 United Kingdom 0 Kazakhstan 0 Iraq 0 France 0 USA 1 Japan 1 Belgium 0 Kyrgyzstan 209 How the concept denoted enshrined in Kazakhstan ‘s political and ideological diversity? 0 separation of powers 0 interethnic harmony 1 pluralism 0 political stability 0 integrity of the person 1 ideological diversity 1 variety, multiplicity 0 tolerance

Tests

165

210 The political system of society is: 1 set of state bodies in authority 0 system of bodies exercising supreme supervision over the application and enforcement of laws 0 set of state and public organizations involved in the implementation of state political power in society 0 institutions and organizations that come together on a professional basis 0 set of ideological institutions of the state 1 set of state bodies with the opportunity to publish regulations 1 set of public bodies, to make informed decisions 0 corporate institutions and organizations 211 System of interrelated and interacting state and public organizations involved in the formation and implementation of public authorities, the concept denoted: 0 political regime 1 political system 0 form of government 0 legal system 0 political party 0 form of government 1 political system 1 system of political institutions 212 Highlight feature distinguishing the state from political parties and public organizations: 0 representing the interests of certain social groups 0 formation around a popular figure ( leader ) 0 unification on the basis of professional interests 0 special powers 1 edition of legal acts, obligatory for the entire population 1 single state policy 1 state ideology 0 audit activities 213 Which of the following subjects the political system serves as the official representative of the people: 0 political party 0 union 1 state 0 social movement 0 labor collectives 1 state institutions

166

Theory of state and law

1 state organizations 0 family 214 The subject of the political system, which is the machine control and coercion is: 0 union 0 Public Association 0 political party 0 civic movement 1 state 1 state institutions 1 state organizations 0 labor collectives 215 How many seats in the lower house of Parliament (Majilis) RK seems to representatives from the Assembly of Peoples of Kazakhstan? 0 6 0 7 0 8 0 10 1 September 1 1 nine 0 11 1 exactly 9 seats 216 What is meant by the legitimacy of state power? 0 matching government social objectives of the state 1 Laws of Power , formed in accordance with the will of the population and the procedures provided for by the Constitution 0 regulation of the powers of state bodies 0 special structural organization of authorities 0 competent authorities 1 legality 1 absolute legitimacy of power 0 defined procedure for filling the posts 217 What is meant by usurpation? 1 forcible seizure of power by a single authority or by one person 0 restricting the activities of public associations 0 structural organization of the state mechanism 0 competitive selection for service in government 0 legality and legitimacy 1 misappropriation of power

Tests

0 1 218 1 0 0 0 0 1 1 0 219

167

competent authorities proclamation dictator against the will of the people What sign is a fundamental characteristic of a civil society? dominance of private interests domination of one ideology administrative command methods of economic management to restrict the rights and freedoms of citizens in the public interest social advantages of a class free development of personality construction of rule of law censorship Which of the characteristics best reflects the essence of the law of the welfare state? 0 tool will subordination of minority to majority 0 machine to crush the resistance of the oppressed classes 0 means of social compromise 0 means total control 0 political organization of the economically dominant class 1 tool for social cohesion 1 the full development of all members of society 0 social advantages of a class 220 Principles of organization and operation of what the state is public consensus, democratic issues of state and society, equality and protection of human and civil rights? 0 socialist state 0 class state 0 ranneburzhuaznogo State 1 legal state 0 transitional state 1 a democratic constitutional state 1 socially oriented state 0 European state 221 Scroll to the fundamental principle of the organization and activities of the state law: 0 centralization of power 0 one-party 0 planned economy 1 protection of human rights and freedoms 0 state power belongs to one person

168 1 1 0 222

Theory of state and law

civilized development of civil society edition of just laws censorship Which of the main activities most closely approximates the RK to civil society and the rule of law? 0 expansion of international cooperation and WTO 0 of economic reforms, market 0 strengthen the country’s defense, military power 0 development of science, education, cultural interaction 1 expansion and deepening of democratic processes 1 stronger guarantees the rights and freedoms of citizens 1 civilized development of civil society 0 planned economy 223 Principles of organization and operation of any type of state are public and national reconciliation, political pluralism and equality before the law? 0 feudal state 0 socialist state 0 transitional state 1 constitutional state 0 ranneburzhuaznogo State 1 a democratic constitutional state 1 socially oriented state 0 class state 224 Term denoting a system of pressure groups on the various authorities to ensure that the interests of powerful forces: 0 corruption 0 opportunism 0 protectionism 1 lobbying 0 separatism 0 tribalism 1 pressure 1 influence 225 The principle of the organization and activities of the state apparatus on the basis of a clear division of competence in order to prevent the monopolization of power in the hands of a single body called: 0 centralism 0 bureaucratic centralism 0 separation of powers 1 self-government

Tests

0 1 1 0 226 0 1 0 0 0 1 1 0 227 1 0 0 0 0 1 1 0 228 0 0 0 0 1 1 1 0 229 0 1 0 0 0 1

169 pluralism part of the population antitrust publicity Level 3 – complex ( 75 questions ) As indicated by the term « political pluralism»? unity of political views of the population , a commitment to the state ideology ideological diversity opportunity to defend themselves in court by various means right to hold any religious beliefs indifference to ideology in general opportunity to hold different political views a plurality of views nihilism What feature distinguishes modern law of mononorm pre-class society? security state coercion credibility repeated application nepersonifitsirovannost ability to regulate the behavior of people mechanism of legal regulation expresses the will of the entire population nihilism The concept of «mononormy» used when describing the rules: slave society feudal society of bourgeois society postindustrial society tribal system primitive system protogosudarstva socialist society Modern legal thinking is associated with : characteristic of law as the will of the ruling class made into ​​ a law Adoption of the rules as a way to ensure the principle of equality representation rights as a manifestation of the human psyche dependence of human rights and freedoms from the state, to create a rule with the role of law as a limiter of freedom Adoption of the rules as a way to ensure that the principle of freedom

170 1 0 230 0 1 0 1 0 0 1 0 231 0 0 0 0 0 1 1 1 232

Theory of state and law

expression of the will of citizens with protective function of the right Representatives of the normative concept of the theory of law are: Aristotle Fraser Troubetzkoy R.Iering B.Spinoza Alekseev Kelsen AN Radischev Representatives of the psychological concept of the theory of law are: Zh.Zh. Russo, Locke F.Akvinsky Confucius Marx, VI Lenin V.S. Nersesyants Fraser L.I.Petrazhitsky Tarde Reisner «Right – a system of mandatory formal certain norms established or authorized by the State and secured state coercion». This definition is given in: 0 sychological theory of law 1 the normative theory 0 sociological theory 0 theory of natural law 0 theory of violence 1 historical school of law 1 Marxist theory 0 theological theory 233 Right in the objective sense should be considered: 1 rights belonging to individual subjects, guaranteed the possibility of certain behaviors 1 set of recognized in a given society , secured official protection regulations 0 legal acts of the judiciary to implement (use) rights 0 societal attitudes about right and justice 0 customs and rules established in the course of life 1 (positive) positive law 0 human rights and freedoms

Tests

171

0 the rights of foreigners and stateless persons 234 Which concept refers definition: «a set of actions in a given society the legal norms of law, legal institutions and legal organization of the whole of society»? 0 objective right 0 subjective right 0 structure of legal norms 0 legal relations 1 legal system 1 national legislation 0 (positive) positive law 1 existing law 235 Under the objective law means: 0 legal organization of society 0 set of rights, freedoms and legal obligations constituting the legal status of a person and citizen 0 a set of ideas, feelings, attitudes, emotions, expressing to the legal phenomena of society 0 Law Practice 1 set of legal rules expressed in the system of law 1 set of legal acts 1 set of rules of conduct 0 legal culture of society 236 Under the subjective right to understand : 0 legal status as citizens , foreign citizens and stateless persons 0 rights, obligations and legal responsibilities of a citizen under the Constitution of the Republic of Kazakhstan 0 capacity and capability of individuals , legal persons competence 0 delictual citizen 1 recognized and guaranteed by fixing a set of laws on citizens’ rights 1 set of the rights of foreign nationals 1 set of rights of stateless persons 0 personality citizen 237 «Right» – is made ​​into a law will of the ruling class, the will, the content of which is determined by the material conditions of life in this class. «This definition refers to the right: 0 psychological theory 0 sociological theory 1 Marxist theory 0 theory of natural law

172 0 1 0 1 238 0 0 0 1 0 1 1 0 239

Theory of state and law

the normative theory class theory theological theory dictatorship of the proletariat Which of the following applies to the current law of RK? morality customs rules judicial precedent regulatory decisions of the Constitutional Council solutions biys provisions of the Constitution regulatory decisions of the Supreme Court administrative precedent Which of the above classifications of legal systems offered French explorer D.Rene: 0 Roman-Germanic, Anglo-Saxon 0 slave, feudal, bourgeois, socialist law 0 right to ancient times, the right of modern and contemporary 1 Romanesque, German socialist 0 right industrial and postindustrial society 1 Scandinavian, Anglo-American 1 Law of Islam and Hindu right 0 Soviet religious and legal systems 240 Which of the definitions for the characteristics of feudal law? 0 is a democratic right, expresses and defends the interests of the majority of the population, the legal system largely codified 0 is built right on the generalization of forensic practice 1 is – right social class 0 is – equity 0 is a right – industrial and post-industrial society 1 is a right – particularistic 1 is a right – church 0 is normal right 241 Name the country with the Romano-Germanic legal system? 1 France 0 India 0 England 0 USA

Tests

0 1 1 0 242 1 0 0 0 0 1 1 0 243 0 0 0 0 1 1 1 0 244

173

Philippines Republic of Kazakhstan The Republic of Uzbekistan Austria Which country introduced the Anglo-Saxon legal system? USA Austria Japan Russia Czech Republic England Norway Switzerland Which legal system is a source of law judicial precedent? Roman-Germanic family of Soviet law religious legal systems the system of customary law Anglo-Saxon continental American law right of modern and contemporary The sources of law, the most common in the Roman-Germanic legal family legal systems include: 0 usual business practices 0 dominant sense of justice 0 Litigation 1 regulations 0 custom 1 laws 1 sub-legal acts 0 Law Practice 245 That in the theory of law designated the term «legal system»? 0 legal personality installation formed jurisprudence 1 system of courts , their way of creation and functioning of 1 set of legal means to ensure the legal regulation of social relations 0 forms (sources ) of law 0 the authorities 1 set of institutions providing legal regulation of social relations

174

Theory of state and law

0 system of law, a legal system 0 rule of law 246 What a concept suited to the following definition: «a set of interrelated features of legal systems, the respective specific socio-economic system characterized by the unity of the economic base and the class essence»? 0 form of law 0 Family Law 1 type of law 0 legal circle 0 legal geography 1 formational approach 0 civilizational approach 1 Type 247 Which answer lists the types of law in accordance with the formational criterion: 1 slave, bourgeois right 0 Romano- Germanic, traditionalist, Soviet law 0 right of the ancient period, the right of the Middle Ages, the right of modern and contemporary 0 Laws of Manu Institutions Guy, Napoleon’s Civil Code, Code of Laws of the Russian Empire 0 Greek law, human agricultural states, Canon Law, Law of the Far East 1 feudal law 1 socialist law 0 Anglo-Saxon law 248 In what type of law enshrined in the Constitution equality of all before the law, inalienable, the absoluteness of human rights? 0 ranneburzhuaznogo law 0 mononormah tribal system 0 slave 0 feudal 1 the right of a democratic state 1 right secularism 0 capitalist law 1 right social and legal state 249 What kind of social norms provided state coercion? 0 morality 0 customs rules 0 norms traditions 1 rule of law

Tests

0 1 1 0 250 1 0 0 0 0 1 0 1 251 0 0

175

norms of religion law laws corporate standards Which of the following concepts most extensive coverage? social norms rules of the hostel morals customs and traditions rule of law social norms morality rules of behavior in society Technical standards – is: rules of conduct governing relations between people norm corresponding representations of people of good and evil, justice and injustice 0 rules of conduct established by the church 0 customs, protected by the state 1 rules governing the treatment technique 1 rules governing the handling of the instruments of production 1 rules governing the treatment of the means of production 0 rules of conduct established by the rulers 252 Morality (morality) is: 0 rules of conduct provided by the State and provided state coercion 0 rules of conduct established by voluntary associations and mandatory for members of associations 0 technical rules of conduct 1 rules of conduct consistent with people’s perceptions of good and evil 0 ceremonies and customs to be observed voluntarily due to historical traditions 1 rules of conduct consistent with people’s perceptions of good and bad 1 rules of conduct consistent with people’s ideas about the just and unjust 0 sanitary rules of conduct 253 What is the difference norms of public organizations (corporate standards) of the rule of law? 1 extends to the limited circle of persons 0 necessarily sanctioned by the state and are issued in the form of laws 0 subject to unconditional execution of all members of society under the fear of legal liability

176 0 0 1 1 0 254 0 0 1 0 0 1 1 0 255 0 0 1 0 0 1 1 0 256 1 0 0 0 0 1 0 1 257 1 0 0 0 0

Theory of state and law

is a necessary element of the content of legal acts contained in mandatory regulations extends to the members of a particular social organization are not mandatory for all citizens sanctioned state What law is not retroactive? adopted by referendum constitutional law establishing responsibility mitigating punishment is not published in the prescribed manner increasing liability Criminal Law repealing punishment Legal act of the Constitutional Council, called: decree solution regulatory decision law User normative judgment decision of the Constitutional Council international treaty and other obligations What regulations made by ​​ the Government? resolution decrees solutions laws constitutional laws orders codes decrees and orders Akim in Kazakhstan in accordance with the Constitution concerning the competence accept: decisions and orders decisions, orders laws, directives decrees, laws orders, decrees

Tests

1 1 0 258 0 0 0 1 0 1 1

177

solutions orders sentences As stated in the Constitution the right of citizens to participate in government? people are allowed to elections state bodies are elected by the will of the people state and private property are protected equally RK citizens have equal access to public service Kazakh citizens have the right to a nationality and the right to change his RK citizens have the right to participate in managing state affairs RK citizens have the right to elect and be elected to state bodies and local self-government 0 Kazakh citizens have the right to submit individual and collective appeals to state bodies and local self-government 259 RK Constitution adopted in 1995: 0 Supreme Court of the Republic of Kazakhstan 0 RK Parliament 0 Government of RK 0 Constitutional Council of Kazakhstan 1 population in a referendum 1 republican referendum 1 popular vote 0 President of Kazakhstan 260 President of the Republic of Kazakhstan on the basis of and pursuant to the Constitution and laws, shall issue: 0 resolution 0 solutions 0 directives 0 acts of amnesty 1 decrees 1 orders 1 laws 0 codes 261 Regulations on the subjects of their publications are divided : 0 to acts of public authorities, adopted by referendum and the international treaties 0 laws and regulations 0 permanent and temporary regulations 0 and the current constitutional

178 1 1 1 1 262 1 0 0 0 0 1 1 0 263

Theory of state and law

legal acts individual acts collective legal acts corporate legal acts What determines the legal force of law? From since the promulgation of from the territorial jurisdiction of the law-making society the number of physical and legal persons to whom it applies the number of regulations with which it must comply on the status of legislative body of a special clause in the law from the date of entry into force of Act from the constitutional powers of law-making body The Government of the Republic of Kazakhstan on issues of their competence: 1 orders 0 laws 0 orders 1 resolution 0 directives 0 solutions 1 decrees and orders 0 codes 264 Maslihats RK on the Constitution concerning the competence accept: 1 orders 0 resolution 0 orders 0 directives 1 solutions 1 decisions and orders 0 laws 0 codes 265 Which of the following regulations have the highest legal force? 0 orders of ministries and departments 1 Constitution of the Republic of Kazakhstan 0 Resolution of the Government 0 laws Parliament 0 Prime Minister’s Orders 1 Basic Law of the Republic of Kazakhstan

Tests

179

1 Law of the state laws 0 Directions ministries and departments 266 Priority in the system of normative legal acts of the Republic of Kazakhstan are: 0 international law 1 RK Parliament ratified international treaties 0 Constitutional Laws 0 Presidential Decree 0 Resolution of the Constitutional Council 1 RK Parliament approved international treaties 1 international treaties ratified by the Republic of 0 The Supreme Court 267 The concept of « system of laws « is denoted : 0 set of legal ideas of society 1 set of existing regulatory acts 0 set of bodies taking PPA 0 set of legal views of society 0 set of different theories 1 set of existing laws 1 set of operating regulations of legal acts 0 set of religious rites 268 Higher legal force of law means: 1 rule of law has 0 law can not be changed by anyone and never 1 the law is not retroactive 0 law signed by the Head of State 0 law canceled 1 remaining PPA must strictly conform to the law 0 law changes 0 prolonged law 269 When the law has a «retroactive»? 0 law is not retroactive under any circumstances 0 retroactive law in all cases 0 law is retroactive in certain situations 0 retroactive law enforcer set 1 if the law softens punishment 1 if the law revokes the legal responsibility 1 if the law softens punishment and cancels the legal responsibility 0 in the case of amnesty

180 270 1 0 0 0 0 1 1 0 271

Theory of state and law

The oldest form of law is: custom sanctioned normative act judicial precedent international treaty legal doctrine tradition religious beliefs corporate standards Which of the following sources (forms) is the dominant law, is the basis of the legal system of the Republic of Kazakhstan? 0 judicial precedent 0 legal practice 1 legal act 0 religious doctrine 0 customary law 1 laws 1 sub-legal acts 0 administrative precedent 272 What act in this system violates the accepted hierarchy of legal acts legal force? 0 Constitution 0 Laws 1 orders of the Minister 1 Directions ministries and agencies 1 solutions akim 0 Decrees of the President 0 Resolution of the Government 0 decisions of the Constitutional Council 273 In which of the following countries participate in the lawmaking courts, create legal norms? 0 France 0 Russia 1 United Kingdom 0 Germany 0 Italy 1 USA 0 Republic of Kazakhstan 1 China

Tests

181

274 To what kind of rules of conduct can be attributed Laws XII tables, Laws of Manu , Russian truth? 0 legal act published by the State 0 morality 1 legal practice 0 judicial precedent 0 religious norms 1 the first codified law sources 1 law of the Ancient World , Middle Ages 0 corporate standards 275 What a concept suited to the following definition: «the Court’s decision, which serves as the standard for dealing with similar cases» 1 precedent 0 custom 0 sanctioned by custom 0 normative act 0 legal doctrine 1 Judicial Precedent 1 administrative precedent 0 religious teaching 276 Pick the concept to the following definition: «Official documents state, created as a result of lawmaking that contain a legal norm»: 0 custom 0 sanctioned by custom 0 judicial precedent 0 legal doctrine 1 normative legal act 1 law 1 sub-legal act 0 administrative precedent 277 Pick the concept to the following definition: «repeated many times the usual rules of conduct that the state has given meaning and obligatory observance of which is guaranteed by the coercive force of the state»: 1 custom sanctioned 0 tradition 0 normative act 0 judicial precedent 0 legal doctrine 1 custom 1 legal practice

182

Theory of state and law

0 administrative precedent 278 To what social norms characteristic possibility of public-enforcement? 0 usages 0 religious norms 0 tradition 1 rule of law 0 morality 1 law 0 treaties 1 laws 279 Which of these rules may not apply to technical and legal? 0 Building Regulations (SNIP) 0 Operating manual mechanisms 0 product performance standards 1 election law 1 medication rules 1 rules of sanitation and hygiene 0 safety 0 rules on water saving drowning 280 Highlight the correct definition of the rule of law: 0 rules of conduct consistent with people’s perceptions of fairness 0 primary rules of conduct 0 rules established NGOs 0 accepted rules of behavior 1 rules of conduct contained in the regulations 1 rules of conduct provided state protection 1 rules of conduct governing public relations 0 of rules to be members of NGOs 281 Formal definitions as a sign of the law means: 1 written form of the law 0 abstractness law 0 security of their state 0 formal universal validity for all 0 method of establishing the rule of law 1 clarity law 1 concreteness law 0 prevalence of the rule of law for all occasions 282 The general character of the law means:

Tests

0 0 1 0 0 1 0 1 283 0 0 1 0 0 1 1 0 284 0 1 0 0 0 1 0 1 285 0

183

written form of the law no particular destination Security State causality the law cease to have effect after execution State authorization Repeated application of the law apply to all citizens What are the most common methods (ways) of legal regulation: Declaration programs, statutes ban recommendation call handling right duty promises What method of legal regulation of the greatest inherent civil law? dispositive incentive imperative recommendation subordination stimulation imperious order control The slave type of law is characterized by the following features: Laws expressed in a strictly prescribed form in the form of normative legal acts 0 Right characterized uniform requirements for all members of society 0 Rights is based on natural law 0 Sources of law are international acts 1 Laws of fixed legal inequality and deprived section of society – slaves every human 0 There is a unity of rights and responsibilities 1 The Act enshrines the legal ideology of the ruling class 1 Right vividly expresses the will of the slave-owning class 286 Which of the classifications of legal norms corresponds to the two main functions of law?

184 1 0 0 0 0 1 0 1 287 0 0 0 1 1 0 0 1 288 0 1 1 0 1 0 0 0 289 0 0 1 0 0 0 1 1 290 1 0 0

Theory of state and law

regulatory rule of law mandatory law prohibiting and authorizing the law permanent and temporary rules of law substantive and procedural rules of law the law enforcement dispositive rule of law communication rule of law Signs of law: categorical political nature expediency normativity universal validity economy principled Formal definitions Legal state as an organization of political power : Provides intellectual development of each individual Consistently 1 binds to the law of the state power to protect the rights of man and citizen Implements rules and customs of international law Creates conditions for the most complete security of individual rights Compliant with international non-governmental organizations Provides interests of the economically dominant class Organizes the exploitation of workers Types of political systems: social Democratic market Republican fair economic distribution mixed Representative government bodies in the Republic of Kazakhstan: Senate The Supreme Court Government

Tests

185

0 1 0 0 1 291 1 0 0 0 0 1 1 0 292 1 0 0 0 0 1 1 0 293 1 0 0 0 0 1 1 0 294 1 0 1 0

Akim of the region Maslihat Constitutional Council PROSECUTOR Majilis The rule of law by the method of legal regulation are divided into: mandatory, reference absolutely certain substantive and procedural general and special laws and regulations dispositive Distinctions specific relative Hypothesis of legal rules provide guidance on: view of the possible behavior view and measure the required behavior terms of rights and responsibilities accountability measures and sanctions consequences for violations of legal regulations measure of the possible behavior species and measure the possible behavior conditions for the application of rights and obligations As called chapeau legal act? preamble hypothesis introduction preclusion foreword Introduction preface disposition Content of the economic functions of the state: funding for industrial research and control and regulation of activities in the field of environment creation of favorable conditions for entrepreneurship ensuring accurate and complete implementation of legal regulations by all the participants of public relations

186

Theory of state and law

0

preservation, restoration and improvement of the natural conditions of human life social assistance to needy members of society formation of the state budget and monitoring expenditure combating offenses What kind of social norms belongs to this feature as «formal determination»? to morality customs regulations norms traditions rule of law standards rites legal norms corporate standards strictly the rule of law Fundamental principles of formation and functioning of the federation: The scientific validity and Voluntary Equality Openness and freedom of speech Pluralism and democracy Formal definitions Normativnost Justice Types of states and societies on civilizational approach: slave civilizations Generic system Potestarian Society feudal civilization Special civilization Local civilizations Traditional Society primitive communal system Economic background of the state: The emergence of excess product Transition from appropriating nature to producing ban on incest The emergence of private property and commodity – exchange relations The transfer of power by inheritance Establishment of patriarchy

0 1 0 295 0 0 0 1 0 1 0 1 296 0 1 1 0 1 0 0 0 297 0 0 0 0 1 1 1 0 298 1 1 0 1 0 0

Tests

187

0 0 299 1 0 0 1 0 0 0 1 300

Change of polygamous relationships monogamous Isolation institute of public authority Application (special) jurisprudence in the system of laws: Forensics Constitutional law Comparative Law Legal Statistics International law Theory of State and Law Roman law Legal psychology The principle of the organization and activities of the state apparatus on the basis of a clear division of competence in order to prevent the monopolization of power in the hands of a single body called: centralism bureaucratic centralism separation of powers self-government pluralism self-financing independent management absolute sovereignty in decision-making

0 0 0 1 0 0 1 1

Glossary

Analogy of law is the solution of a particular legal case with similar legal norms Apparatus of the state is endowed with a system of imperious powers of the state, created to address the challenges they face and the performance of its functions. Veto refusal is signing a bill passed by the supreme legislative body of the state, the country’s president. Theory of the separation of powers is a fundamental principle of the organization and activities of the state apparatus in modern constitutional states. Power is political power that belongs to organizations created specifically to fight for the possession of the state and political parties. State is an organization of political power needed to perform as a purely class objectives and general affairs arising from the nature of any society. State power is a kind of social power, is embodied in the state and legal institutions designed to organize and control society. Civil society is a society of citizens, people with closely related legal and political cultures, which are based on moral principles. Delegated lawmaking is the implementation of legislative activity on behalf of non-governmental organizations competent state bodies. Democratic society is primarily civil society. Higher meaning of true democracy is the harmonization of interpersonal, international, public and political relations when man and society, society and public authorities to live in peace and harmony. Dual monarchy is an intermediate option between absolute and parliamentary monarchies, the original form of a limited monarchy. Incorporation – is a form of organizing, at which the unification of the various legal acts in the collections, their location in a certain order. Source of law is a way of expression, binding legal norms. Codification – is a form of organizing, at which there is a fundamental change of standard material, combining it in a new, unified, systematic internal regulations.

Glossary

189

Consolidation – is a form of organizing, where regulations are being finalized, and are complemented together in new legal act . Confederation is a union of states to deal with any political, military, economic and social problems. Corporative rules are the rules of conduct issued by organizations or established organizations and apply to their members. Culture is historically a certain level of social development, creativity and abilities, expressed in the types and forms of organization of life and activity of people in their relationship, and they create in material and spiritual values.​​ Normative treaty is an agreement between two or more parties, which resulted in the set, change or cancel the law. Normative legal act is an act of legislative activities of the government and that establishes, modifies, or cancels the rule of law. Norm of law is established and provided by the state obligatory rule of conduct for regulating relations in society. Organ of the state is an independent unit of the state apparatus, created in accordance with the law, which has the statutory structure and endowed with certain competence. Branch of law is the body of law, which forms an independent separate part of the system of law, regulatory quality homogeneous sphere of public relations for its special method. Policy is a set of norms, attitudes and political consciousness associated with the struggle of people for power and its use. Custom is the rule of conduct was the result of its actual use for a long time, anywhere in the official documents are not recorded, but recognized by the state. Legal system is a set of legal acts, emerging and applied on the basis of general principles. Law-abiding state is a legal form of organization and operation of publicpolitical power and its relationship with the individual as a subject of law. Legal consciousness is one of the forms of social consciousness, which is a set of views, ideas, concepts, evaluations, feelings and emotions of people in relation to all legal reality. Legal relations are occurring based on the rule of law and due to the occurrence of certain legal facts Feedback subjects of law, with mutual subjective rights and responsibilities. Law using act is a document which contains individual- specific regulations, issued by the competent authority as a result of decisions of a legal case. Presumption is confirmed by law enforcement practice the assumption of the presence or absence of legally significant phenomena. Crime is guilty of a wrongful act that violates criminal law and harmful to the most significant public relations.

190

Theory of state and law

Law using is an activity that can be carried out only by specially authorized state bodies it (government or corporate), unlike other forms of exercise of the right, which may engage in all subjects of law. Principles of law are fundamental ideas, principles on which to base one or another legal system. Procedural law is a set of legal norms incorporated in institutions subsector, industry law governing social relations that arise in the implementation and protection of substantive law. Realization of law is the implementation of legal regulations in the lawful conduct of citizens, organizations, agencies of the state. Republic is a form of government in which the supreme power in the State, the elected bodies. Market is a system of economic relations between buyers and sellers, whose main elements are demand, supply and price. Systematization of the legal acts is to streamline operations and improve the legislation to bring it to a specific system by making uniform legal acts or their collections. Community is organizational union of states, characterized by the presence of common features, a certain degree of uniformity. Social norms are the general rules governing the behavior of people in society. Sovereignty is the rule of power within the country and outside the country its independence. Subjective law is occurring within the statutory law based on the specific facts of the legal measure of the possible behavior of the authorized person. Court precedent is a decision in a particular case, which is compulsory for vessels of the same or a lower court in dealing with similar cases, or serving as an exemplary model of interpretation of the law. Taboo is a system of prohibitions on certain acts (the use of any items, spelling words, etc.), the violation of which is punishable by superstitious notions supernatural powers. Federation is a federal state, part of which possesses the attributes of statehood. Value of law is the ability of law serve as a means to meet the fair, progressive needs and interests of society and its individual members. Civilization is a synonym for culture, and the level, stage of development of material and spiritual culture, stage of social development that follows barbarism, and even the era of degradation and decline of culture, as opposed to its integrity and organically. Legal technique is a set of design rules, design, publishing, and systematization of legal acts. Legal facts are specific life circumstances, with the onset of which is associated with a rule of law, amendment or termination of legal relations.

Recommended literature

1. Lazarev V.V., Page Lippen of Century, Saidov A.Kh. State and law theory. – Tashkent, 2007. 2. Ayupova Z.K. Theory of state and law. – Almaty, 2010. 3. Ayupova Z.K. Theory of state and law. – Almaty, 2013. 4. Busurmanov Zh.D. State and law theory. – Almaty, 2006. 5. Ibrayeva A.S. Theory of state and law. – Almaty, 2006. 6. Malko A.V. State and law theory. – M., 2003. 7. Syrykh V.M. State and law theory. – M., 2004. 8. Rumynin V.V., Klimenko A.V. State and law theory. – M., 2002. 9. Chestnov I.L. Actual problems of the theory of the state and law. – St.-Petersburg, 2004. 10. Zherugov R.T. Active technologies of teaching and studying of the theory of the state and law. – M., 2010. 11. Russian-Kazakh dictionary of legal terms. Under the editorship of Ibrayeva A.S. – Almaty, 2002. 12. The alphabet of law. – M., 2000. 13. The Constitution of the Republic of Kazakhstan 1995 with changes and additions from May 21, 2007. 14. Explanatory dictionary of the Constitution of the Republic of Kazakhstan. – Almaty, 2005. 15. Ayupova Z.K. Legal system of the Republic of Kazakhstan in the conditions of globalization. – Almaty, 2011.

Еducational issue

Ayupova Zaure Karimovna THEORY OF STATE AND LAW Textbook Typesetting and cover design G. Kaliyeva Cover design used photos from sites www.law-slide-justice.com

IB No. 8229

Signed for publishing 06.05.2015. Format 60x84 1/16. Offset paper. Digital printing. Volume 12 printer’s sheet. 30 copies. Order No 1053. Publishing house «Kazakh University» Al-Farabi Kazakh National University KazNU, 71 Al-Farabi, 050040, Almaty Printed in the printing office of the «Kazakh University» publishing house