Методологічний аналіз інтерпретацій поняття «правотворчість»

Abstract

Розглянуто існуючі в сучасній юридичній науці підходи до розуміння поняття «правотворчість». На основі їх аналізу обґрунтовано авторську дефініцію цієї загальнотеоретичної категорії, що є спробою подолання однобічного підходу до розуміння досліджуваного явища правової дійсності.

The analysis of the existing in modern juridical science approaches towards understanding the studied notion has allowed formulating the following interim conclusions having methodological meaning. The analysis of the scientists’ views concerning the understanding of the studied notion provides the grounds for conclusion that lawmaking is a complex multiform phenomenon of legal reality and that is why complex conception of this phenomenon might be received only as a result of its multi-aspect consideration: - in gnoseological sense lawmaking is a cognitive process, directed at discovery of needs and interests of a society, regularities of its development and interpretation of them by language of legal principles and norms, and it gets its completion in outer objectivation of the results of intellectual activities of the subjects to lawmaking; - in the aspect of the theory of jural relationships, lawmaking should be viewed as real actions of the authorized party of managerial jural relationships (mainly of the public authority bodies, its officials)as to realization of appertaining to it state and imperative powers concerning creation, changing and abolition of legal norms; - from the point of view of the theory of jural facts, objectivated in normative and legal act result of lawmaking is a legal act that is a factual basis for beginning, changing or stopping of jural relationships; - in the aspect of interrelation with the process of legal regulation, lawmaking should be viewed as its main stage (the matter is about modeling of behavior of legally competent subjects to law); - from the point of view of interrelation with the state functions, lawmaking is a jural form of exercising state functions, that is similar by its substantial features kind of activities of state bodies which is related to approvl of legal act, which in the theory of law has got its name as a normative and legal. Taking into account these provisions it is suggested to understand as lawmaking as based on social-legal experience a cognitive by its content and legal by its form juridically significant activities of authorized subjects to law (mainly public authority bodies, its officials) having volitional disposition, flow of which passes through procedural order, directed at discovery of needs and interests of a society, regularities of its development and interpretation of them by language of legal principles and norms, and it gets its completion in outer objectivation of the results of intellectual activities of the subjects to lawmaking.