The subject and object of legislative technique are the authors. The concept of legislative technique. Requirements for the logic and style of the law directly affect the language of lawmaking

In the literature on legal theory, legislative technique is traditionally considered in the context of lawmaking as one of its elements. Some legal scholars interpret it as a system of rules and techniques for preparing the most advanced in form and structure of draft regulations, ensuring full and exact compliance of the form of regulatory instructions with their content, accessibility, simplicity and visibility of regulatory material, exhaustive coverage of regulated issues. Others - as a set of rules, means and techniques for the development, execution and systematization of normative acts in the context of sources of law and lawmaking. Its object is the text of a normative document, in relation to which the legislator expends intellectual efforts. Sometimes the means of presenting the content of legal legal prescriptions, the methods of formulating norms or provisions of legal acts, the means and methods of constructing legal acts are distinguished. In general, legislative technique is recognized as an important factor in the optimization and effectiveness of legislation.

In Russia, issues of improving legislation began to be dealt with in the second half of the 19th century. The increased attention of scientists and practitioners to the form of the laws of that time is evidenced by the discussion that unfolded in the legal literature about the draft Code of Criminal Punishments of 1885. So, in one of the comments on the project it was written that: The simplification of legislation proposed by the project, by reducing to a minimum the number of definitions on theft of property, is achieved due to the completeness, clarity and certainty of the law. For future jurisprudence, the draft opens the prospect of a number of difficulties, since the text of the law is too short to answer all the questions of law and action of life”

The greatest interest of Russian lawyers in the problems of legislative technique manifested itself in the period from 1900 to 1917, i.e. at a time when a bourgeois revolution was brewing in Russia. At that time, such Russian scientists as N.S. Tagantsev, F.P. Butkevich, M.A. Unkovsky, P.I. Lublin

Simultaneously with the works of the Russians, the works of European scientists, such as I. Bentham and R. Iering, were also published. P.I. Lyublinsky in his well-known manual “Technique, Interpretation and Casuistry of the Criminal Code” wrote that, being a changeable creation of human hands, legal law finds its strength in itself and only in this form is it an active, order-creating will. Therefore, the word of the legislator is a deed that only a God-gifted person succeeds in perfection, who can create an intuitively sacred legal order, consisting in living accordance with the soul of the people and real forces. Further, he noted that legal interpretation teaches us the art of developing the thought of the legislator and extracting the necessary content from it. But it is conceivable only when one gets acquainted with the technical methods used by the legislator in the construction of their norms. That is why P.I. Lublinsky believed that legal hermeneutics should be preceded by the study of legislative techniques.

A different point of view on the problems of legislative technique was held by another well-known Russian legal scholar M.A. Unkovsky. In one of his scientific works, he wrote that, undoubtedly, the experience in legislative technique, obtained by sitting for many years in the process of drafting laws, is far superior to that knowledge in this branch that is available to persons who have recently entered the field of legislative activity, which in most cases are elected members of the legislative chambers, but that such experience cannot be called sufficient, is already shown by the fact that those legislative acts, which in different states came out from the pen of legislators before the introduction of the electoral system into legislative institutions, also invariably, upon their publication, caused a lot of bewilderment, requiring all kinds of additions and explanations, both authentic and administrative and judicial.

How, then, can one compare this, so to speak, primitive type of experience with the knowledge that would arise from a systematic acquaintance with a whole mass of legal questions caused by life, taken from different areas of law, different countries and different eras, and if this acquaintance takes place not in passing with the development of various private bills, but pursues the special task of clarifying the general nature of the legislative and technical shortcomings of the legislation, which are usually the causes of this or that kind of confusion, and of inventing the most advantageous for entire systems of laws of methods of presenting them in such a way that the entire complex of legislative norms of each given country was expressed in the most concise and clear way? Experience of the first kind is nothing more than a certain "training" in the matter of legislative technique, and, moreover, as already explained, very insufficient, judging by its results, while the knowledge that would be obtained through the above systematic and special work would contain everything those useful guidelines for presenting legislation in a clear and concise form that it is generally possible to draw

When developing a modern definition of legislative technique, one must constantly remember that its main purpose is to solve the problems of the relationship between the content and form of law. Its purpose is to give the laws a form that would fully correspond to their content and meet the requirements of accessibility, simplicity and clarity.

Attention should be paid to the specifics of legal and technological methods in different branches of legislation. Their distinction is due to the unequal object and methods of legal regulation. For example, in constitutional legislation, more norms are used - definitions, norms - goals and norms - principles, and the norms themselves often consist only of dispositions. In civil and criminal legislation, strict and detailed structuring of institutions and norms is traditional.

In our opinion, legislative technique is a system of rules intended and used for the cognitive-logical and normative-structural formation of legal material and the preparation of the text of the law. In this definition, six interrelated elements can be distinguished: cognitive - legal, normative - structural, logical, linguistic, documentary - technical, procedural.

Each of the elements contains a set of requirements - rules that must be strictly observed. Their application, taking into account the stages of the movement of the bill, should be consistent and interconnected.

The cognitive element means the definition of the subject of legislative regulation, the choice and analysis of processes, phenomena and relations that can be the object of legislative influence. It is justified to proceed from the following range of legally regulated relations:

a) their high social significance for society, the state and the citizen; b) stability; c) primary - normative regulation; d) the predetermination of constitutions; e) competence of the subject of legislative activity.

The right choice of the form of a legal act is also connected with these components, taking into account its place in the legal system and classification features, both official and doctrinal.

The cognitive aspect of preparing a law is related to its concept. This is an analytical normative model with options for legal behavior, with an approximate structure of an act, its links with other acts, possible consequences and evaluating the effectiveness of the action. Replacing concepts with all sorts of explanatory notes, etc. outwardly simplifies the process of lawmaking, but in reality only devalues it.

Within the framework of the concept of law, the “set of concepts” that are supposed to be used are important. These are, first of all, scientific and legal concepts developed by legal science and necessary for the correct construction of the law. Their underestimation and ignoring lead to errors and legal contradictions. Further, it is necessary to correctly apply constitutional concepts, not allowing arbitrary deviations from them.

Quite often, concepts and terms are recognized in any law. Is it necessary? Traditionally, within the framework of the system of continental law, to which, we note, Russian law mainly belongs, not every law is accompanied by a set of its own concepts. They are already laid down in constitutions, codified acts and scientific doctrines. In our country, on the contrary, there is a passion for definitions as a "business card" of the law.

The Water Code contains 30 basic concepts - such as "water", "water", "groundwater", etc. (Article 1). It is unlikely that they have a specific meaning that required normative expression. In the Air Code, there were no norms at all - definitions, except for the concept of "specially authorized body" (Article 6). This circumstance led to their appearance in specific laws adopted within the framework of this sphere.

It is more correct, firstly, to introduce normative concepts only in the basic laws (codes), secondly, to achieve a strict internal connection between the norms - definitions and chapters, articles of the law, thirdly, to ensure consistent and correct application of the basic norms - definitions in other laws and other acts.

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Introduction

2. Elementyou're a legislative technique

Conclusion

Introduction

The rapid and large-scale development of the legal sphere of society leads to a sharp increase in the volume of the regulatory and legal array. Citizens and their associations, state bodies and business entities are in daily contact with the law. However, the quality of laws remains low, and to a large extent - because of the obvious underestimation of the role of legislative technique. As a result, in the process of lawmaking and law enforcement, many legal conflicts arise that could have been prevented. But the vast majority of civil servants, deputies, specialists and experts still do not know the techniques of legislative technique, and they are not trained in this. However, the very technology of drafting laws today requires a serious update.

The purpose of this work is to explore the institution of legislative technology. To achieve this goal, we set ourselves the following tasks:

Give the concept of legislative technique, consider this concept in its genesis;

Identify and analyze the main elements of legislative technique;

Consider the features of legislative technique in Russian Federation.

At the end of the work, summarize the results of the study.

1. The concept of legislative technique

A different point of view on the problems of legislative technique was held by another well-known Russian legal scholar M.A. Unkovsky. In one of his scientific works, he wrote that, undoubtedly, the experience in legislative technique, obtained by sitting for many years in the process of drafting laws, is far superior to that knowledge in this branch that is available to persons who have recently entered the field of legislative activity, which in most cases are elected members of legislative chambers, but that such experience cannot be called sufficient is already shown by the fact that those legislative acts that in different states came out from the pen of legislators before the introduction of an elective system into legislative institutions, also invariably after their publication caused darkness of bewilderment, requiring all sorts of additions and clarifications, both authentic and administrative and judicial.

The right choice of the form of a legal act is also connected with these components, taking into account its place in the legal system and classification features, both official and doctrinal.

The cognitive aspect of preparing a law is related to its concept. This is an analytical normative model with options for legal behavior, with an approximate structure of the act, its links with other acts, possible consequences and an assessment of the effectiveness of the action. Replacing concepts with all sorts of explanatory notes, etc. outwardly simplifies the process of lawmaking, but in reality only devalues it.

2. Elements of legislative technique

Analysis of the institution of legislative technique is impossible without considering its elements.

Legal terminology is a traditional element of legislative technique. Almost all scientists involved in the study of this issue agree with this. However, as A.S. Pigolkin, not every word used in a normative act is a term. A term can be defined as a word or an expression consisting of several words, which denotes a strictly defined concept, limited by precise limits, rigid frames. The legal term is a narrower concept in content.

The Big Law Dictionary gives the following definition of legal terms - these are verbal designations of state-legal concepts, with the help of which the content of the state's legal regulations is expressed and fixed.

The following interpretation is more accurate: a legal term is a word or phrase that expresses this or that with the utmost accuracy. legal concept and having stability, as well as unambiguity (at least striving for it).

Traditionally, there are three types of legal terms in the scientific literature:

Common (characterized by the fact that they are used in the ordinary sense and are understandable to everyone, for example, law, man);

Special technical (reflect the area of special knowledge - medicine, economics, Agriculture etc., such as safety regulations);

Special legal (have a special legal content).

S.S. Alekseev believes that only special legal terms belong to the legislative (legal) technique.

Legal terms can be classified on the following grounds:

1) by source of occurrence: Russian-speaking and foreign;

2) according to the degree of specificity: requiring interpretation and unambiguous;

3) according to the degree of complexity: single-component and multi-component.

The use of legal terms in legislative acts must meet certain requirements.

Clarity, i.e. legal norms should be clear to everyone to whom they are addressed. The content of a legal term should be clear to the law enforcer, the term should not cause unjustified efforts both to understand and to explain its content. Each term used in law should ideally have its own, and only its own, original and, moreover, the only meaning. As a rule, an obscure term appears in legislation as a result of the mechanical transfer of this term in its general linguistic meaning to a normative act (the so-called model of the lexical-semantic formation of a term) and the legislator ignoring the difference between the general language and special legal meanings of this term. As a result, there are usually logical violations in the text of the normative act.

Obviously, in order to ensure the clarity of the term, the developers of the text of the legislative act must follow the rule according to which any term used in the text of the act is presumed in its general linguistic meaning, unless the developers themselves determine otherwise and give a different definition of a particular term.

Uniqueness, i.e. the same term should be used in one or another normative legal act in only one meaning. The text of the law should use simple words, terms and phrases that are widely used in everyday life and are easily perceived by people.

Sustainability, i.e. the term must retain its special meaning in each new normative legal act.

Unity of terminology, i.e. the terms used must be identical and not contradict the terms contained in other regulatory legal acts.

An element of legislative technique is the normative structuring of the text of the law. This refers to a clear sequence of operations. These include actions to develop the composition of the act, establish its constituent parts, formulate the names (headings) of legal prescriptions (norms), use references and other norms of “legal links”, determine the methods and procedure for the entry into force of the act, cancel and change other legal acts. Let us explain what has been said in more detail.

Taking into account many years of practice and scientific developments, the following rules can be recommended for developing the structure of a law: highlight the heading, preamble, normative instructions, final and transitional provisions in the law as its components. It can be chapters and articles; sections, chapters and articles; parts, sections, chapters and articles. Such a division is predetermined by the amount of normative material, but on the condition that the legal norm serves as the primary cell. It is its design that should be the criterion. Articles are best divided into paragraphs with numbering.

A set of legal rules of conduct should be reflected as formulas of lawful and unlawful behavior. The question of the classification of legal norms has been developed in the legal literature. However, mistakes are still being made.

An example of an unsuccessful formulation of a norm is Art. 6 "Unified Gas Supply System" of the Federal Law "On Gas Supply in the Russian Federation". It describes in detail what the Unified Gas Supply System is, who owns it, and how it is regulated by the state. The "inflated" norm - the definition has absorbed a number of specific norms - prescriptions.

The question of references is very important in the legislation. With their help, systemic links between norms and acts are provided. In practice, unfortunately, many mistakes are made in determining the types of references. Let us make the following explanations in this regard.

References to the norms of the law are acceptable when it is necessary to provide a link between its general and specific, special provisions. References to legal acts of a higher legal force are justified when it is necessary to identify the law-forming source of this law. Possible references to international acts ratified and approved by Russia and imposing obligations on it, requiring the adoption of domestic acts for their implementation. References to acts of lower legal force are justified when it is necessary to lengthen the "legal connection" and determine the grounds for issuing a new law or instruct to adopt a by-law.

According to their volume, references can be made to a specific law as a whole or part of it, to a law in a broad sense, to legislation. They concern both existing and proposed legal acts. Moreover, in all cases, it is necessary to observe the measure, avoiding mistakes in the choice of their types, as well as redundancy, ignoring or underestimating.

Legislative technique also includes such an element as the language of the law. We are talking about a broader phenomenon of the language of law as a special logical-lexical structure of speech. This problem received development in the legal literature. This is an understanding of the legal language as a specific one, the words in which form sentences that make up capacious legal formulas. Brevity, concentration, unambiguity, ease of understanding are the most important requirements for this kind of language. On the other hand, “language prohibitions” should be strictly observed - metaphors and figurative expressions, archaisms and dialectisms, foreign words and terms, simplifications and conditional phrases should be avoided. Prescriptions are best expressed through the must-prescriptive and stating-prescriptive ways.

Legislative technique is also characterized by such an element as legal logic. In general, logic in law, both for lawyers - scientists and practitioners, is an absolutely necessary knowledge. The need to use formal logic in the law-making process is correctly noted, when the correct application of the law of identities allows avoiding polysemy (polysemy) and other violations. No less important is the logical law of non-contradiction, the law of the excluded middle, the law of sufficient reason.

An element of legislative technique is also a set of means for documenting a bill. These include: a clear title (title), general numbering, designation of parts of articles with an Arabic numeral or letter, designation of the date of adoption of the law by the State Duma and approval by the Federation Council, signing of the law by the President of the Russian Federation, authentication of the text, registration number, etc. All this is important in conditions for the use of information technology in the legislative process.

An element of legislative technique is the observance of the procedural rules for drafting a bill. In this regard, we briefly note the main points and the sequence of compliance with the preparatory procedures:

a) preparation of the initial text;

b) discussion and agreement of the text;

c) obtaining conclusions;

d) preparation of the required documents - an explanatory note, financial and economic justification, the conclusion of the Government of the Russian Federation (part 3 of article 104 of the Constitution of the Russian Federation), a list of amended and repealed acts of federal legislation, etc. (article 105 of the Regulations of the State Duma);

e) introduction of the draft law in accordance with the established procedure;

f) taking into account other requirements of the regulations.

Formation and sustainable application of the rules of legislative technique is influenced by the ways in which they are made binding. So far, the subjects of legislative initiative are using "their" rules. The Federation Council uses the "Dictionary of Legal Concepts", the State Duma maintains an electronic database "Law", an electronic archive of documents has been created. There are reference books on the execution of acts of federal government bodies. Let us recall that in the past the Ministry of Justice of the USSR adopted methodological recommendations on the procedure for preparing legislative and government acts. Now some ministries have their own rules of this kind.

Violations of the requirements and rules of legislative technique often serve as the basis for the veto of the President of the Russian Federation on the adopted federal laws. As experts note, conflicting terms, failure to amend existing acts, grammatical and logical errors, contradictions between the norms of different laws give rise to such presidential actions. Correct parliamentary response to them, of course, helps to improve the quality of laws.

In the laws of the constituent entities of the Russian Federation, there is sometimes an excessive variety not only in terms of their content, but also in terms of the composition of the texts themselves. The abundance of norms - definitions, duplicating and confusing terms, arbitrary structuring of the text, dubious designations of parts of the law, unsuccessful formulation of legal norms, ignoring systemic connections, erroneous references, references - these are the most typical technical and legal shortcomings.

For example, the Law of the Kaluga Region dated June 27, 1996 "On the status of a social service worker in the Kaluga Region" contains a preamble, which is a kind of summary of the law. In Art. 1 contains a definition of social service, although there is art. 2 about basic concepts and definitions. Some articles are divided into paragraphs with numbers, while others are divided into paragraphs. The law consists of four sections and 18 articles, and the title of section II "Principles and Fundamentals" is very ambiguous. The law of the Chelyabinsk region "On the radiation safety of the population of the Chelyabinsk region" is overloaded with concepts and definitions - there are 30 of them. All articles with headings are numbered, internal division is numeric and alphabetic. Articles of the laws of the Yamalo-Nenets Autonomous Okrug often do not have headings.

Annexes to them began to appear in regional laws. This is the legislative practice of the Voronezh region and St. Petersburg. For example, the Law of St. Petersburg dated May 5, 1999 “On the Kronstadtskaya Economic Development Zone” has five articles. The first is about the creation of the zone, the second is about its territory, the third is about the approval of the Regulations on the zone, which is given in the annex to the Law, the fourth is about amendments to the Law on tax incentives.

3. Shortcomings of the legislative technique of the Russian Federation

In the days of the USSR, many legal acts, which were not inferior in value to laws, were adopted at the level of the Government, and in a number of cases - in the form of joint resolutions of party and Soviet bodies. In the late 1980s, this order began to be overcome, so that the legislative process became much more widespread. In the Russian Federation, this trend continues, but the very quality of laws leaves much to be desired. The following are some typical shortcomings inherent in the current legislative technique.

Anonymity of legislative acts. The adopted laws are deprived of information about their authors, developers, initiators, which may be individuals, teams, organizations. In a number of cases, this makes it difficult not only to name them, but (which is much more important) to understand, interpret, and use them. In addition, anonymity reduces the responsibility of these persons for the proper development of laws, facilitates the submission of draft laws to legislative institutions in their raw form. Unfortunately, in an unfinished form, they often come to the final approval.

The language of laws. The titles of some laws are unreasonably long, so it is useless to refer to their titles. Thus, the title of the well-known Law No. 122 (“On the monetization of benefits”) takes up half a page. This alone makes its name incommunicable. In addition, it is presented in such a language that it is impossible to understand either from the first or from the third reading.

Legislators often forget that laws are written not only for executors, but, above all, for the people. Therefore, the language of the law must be understood ordinary people and not just professionals.

The incomprehensibility of the law. In Chapter IV of the Land Code on land acquisition for capital construction, the concept of “preliminary approval” is used in relation to a land plot intended for development. No explanation is given for this concept; it remains unclear whether there is a “final agreement” and, if so, in what order it is carried out, whether the agreement refers only to the selection of the land plot or also to the (preliminary) approval of the construction project. Art. 31 on the selection of a building site begins with the procedure for its selection. At the same time, no distinction is made between situations where the land is free (for example, is listed in the state reserve) and when someone owns it. It remains unclear whether the pre-approval procedure applies to the case where the developer already owns the land. In Art. 31 (8) contains a warning to the "owner" that he should not build up the land plot in respect of which a preliminary agreement took place. It must be assumed that this refers to the owner of the land, an outsider for the developer. But since this is not explicitly stated, the text of the law turns out to be unintelligible. Preliminary approval is assigned to the "executive body of the state. government or local government. Which of them should be addressed if the land is in (outside) private property is a mystery. What to do if these bodies do not respond to the requests of the applicants is also unclear.

It is not clear to whom these bodies should "patronize" by giving consent to "preliminary approval" - after all, they cannot make positive decisions regarding any applications! The law should state that those applicants whose projects are of significant public importance can expect positive decisions. In the United States, state laws directly name those organizations (for example, pipeline companies) whose harassment of foreign lands is justified by the social significance of the objects being designed.

Confusion of concepts, inaccuracy of terms. The confusion of concepts and the inaccuracy of the terms used are adjacent to linguistic errors. Yes, Art. 123 of the Water Code of the Russian Federation of 1995 establishes a system of payments for the use of water bodies. Among the first is the payment for the use of water bodies, and immediately this payment stands for "water tax". Thus, the household payment (it is not clear in whose favor) is replaced by a tax one. This substitution is not at all harmless, because the tax authorities are by their nature not adapted to collect fees for water use (just like for mining or timber harvesting - although both are assigned to them by law).

In mining legislation, exploratory drilling is equated with the use of subsoil, although this “use” requires only expenses from geological organizations.

The ambiguity of the concepts used. Since the laws have to use special terms, the latter require clarification. Such an explanation is contained in a number of laws - either in the articles where these terms are used, or it is placed in a special article (if special terms are used in many articles of the law). However, the glossaries created in this way are not always complete; therefore, special terms fall into the articles of laws, which are not explained anywhere.

The explanations already given are not always qualified. In the same Water Code, the key concept for water management is “water body” in Art. 1 is explained as "the concentration of waters on the surface of the land in the forms of its relief or in the bowels, having boundaries, volume and features of the water regime." In this definition, the self-explaining concept - the water regime - requires explanation. In addition, the most important features of a water body that separate it from a well, temporary reservoir and watercourse or from a reservoir of industrial waste, a sump, a swamp, a puddle are not indicated: its economic and (or) ecological value and its ability to serve public needs. These last characteristics are not only clarifying for legal regulation, but also a legislative feature: the question of the economic or other value of a particular accumulation of water cannot be decided at the federal level, which implies the need to expand the competence of the regions in relation to water.

Contamination of laws with alien material. The main content of laws should be rights and obligations - both material and procedural (procedural). Practice allows for the introduction of general declarations into laws, although the possibility of “deriving” from them by interpreting rights and obligations is debatable.

But many laws contain not so much the indicated “legal matter” as “educational material” that serves to enable legislators themselves to understand the subject of regulation and the tasks of regulation that they set for themselves. Thus, they confuse the law with explanatory notes and other documents that should accompany the process of lawmaking.

Often the articles of the law contain only ideas on the topic of "how it should be." At the same time, it does not indicate who and how should implement these ideas and what are the sanctions in case of non-execution (improper execution). Such articles are essentially declarations of intent and should not clutter up the text of the law.

The limits of the law. Legislators do not always ask themselves whether the law is able to cope with the problem that worries them. If the subject of regulation is too varied and cannot be formally defined, then (one might say) it is “inaccessible” to the law.

The way out here is that the regulation is carried out not by a law, but by a narrower (special) document, for example professional code. An example is the recent agreement by television channel managers to reduce (eliminate) scenes of violence in their programs.

The legislator (perhaps) is required to adopt a general rule that, when considering such cases in courts (or administrative instances), judges took into account the customs and rules adopted at the professional level in this area of public relations, as the Civil Code did in relation to customs business turnover(Article 5).

Branches of law, docking of norms and conflicts of law. The grouping of laws into special branches of law usually occurs when laws that have a common subject of regulation are combined into a code. For example, land laws took on the shape of a branch of law with the adoption in 1922 of the Land Code of the RSFSR (and land codes of other republics). The Code helps the user to review in one document the entire group of laws of interest to him, and the legislator - to check their mutual compliance and find gaps. Unfortunately, it is not customary to provide codices with subject indexes, although this would facilitate their use.

Some codes, such as the Civil Code, contain an indication that the norms of civil law adopted in other laws must comply with the Civil Code (Article 3). However, "reconciliation" of the relevant bills with the Civil Code often does not occur. Thus, in 2005, the Ministry of Economic Development developed a concept (and a draft law) on autonomous institutions in the field of medicine, education, sports, etc., with the aim of achieving their self-sufficiency and the release of the state. budget from their full funding<*>. At the same time, it ignored that the Civil Code does not contain the concept of an autonomous institution and that, if recognized as such, it should be mentioned in the Civil Code. In addition, it did not take into account that the Civil Code defines the rights and obligations (“simply”) of institutions and that, if autonomous institutions it will be necessary to distinguish these structures from already known institutions. Otherwise, confusion, disputes and conflicts at all levels are inevitable.

For better docking of laws related to several branches of law, such a technique is practiced as a cross-reference of related laws to each other. Such mutual references, explicitly or implicitly, are present, for example, in the Civil Code and in the Land Code of the Russian Federation. It is possible to transfer (borrow) the norms from one Code to another. But in some cases, both of these methods are ignored. Sometimes relations that can be regulated by related branches of law are simply bypassed.

So, when drawing up the Housing Code of the Russian Federation, the “land issue” was almost completely bypassed, although there are considerable problems with the improvement of households, and with their borders, and with unauthorized placement of garages and other objects in the yards, and with easements (the right of passage and passage of outsiders persons). The Housing Code did not use the term "home ownership" itself; as far as is known, this was done deliberately, "so as not to interfere" in related branches of law.

This position is wholly flawed. Firstly, no one forbade the authors of the JK to enrich the land and civil legislation, since the new norms would not conflict with those already adopted. And secondly, the authors of the LCD did not take into account the concept of the main thing and its ownership, which is present in both the Civil and Land Codes. According to this concept, the yard (as well as the underground facilities that serve the house) is a property of a residential building. The yard and the house make up an economic complex, which is subject to legal regulation as a whole.

Preparation of bills: understanding the actual state of affairs. Although the authors of draft laws usually know (at least in general terms) the subject of regulation, they resort to the help of experts. However, this is not always the case. In addition, even if experts are involved, in many cases this is not enough, because the experts themselves are usually specialists in relatively narrow areas that do not cover the entire scope of the bill.

In Russia, the so-called parliamentary hearings adopted in other countries, the materials of which are published, are not practiced. This last trick does more than just listen to the opinions of knowledgeable individuals. He disciplines the latter, forcing them to more carefully prepare both the factual material and their arguments presented at the Hearing. In addition, other interested persons, including those who can influence the course of discussions, have the opportunity to get acquainted with the published facts and opinions.

At present, there is a paucity of literature covering this or that area of social relations; this makes it difficult to fully discuss the submitted bills. For example, when preparing the (recently adopted) Housing Code, it would be very useful to cover the experience of managing households on the part of the current housing cooperatives, HOAs, as well as pre-existing ZhAKTs, but books or brochures on this topic are not known. Many, even specialists, do not know the experience of the relationship between the current housing organizations and public utilities serving the housing sector. So, the forms are not known standard contracts that apply in these cases.

Apparently, when preparing such a responsible document as the Housing Code, a series of brochures highlighting the experience gained should have been commissioned from knowledgeable authors or institutions. Only in this case could one hope that new law will not miss important unresolved problems and will not offer solutions that would be at odds with the actual circumstances.

In the same light, such a long-established (but rarely used) method as the publication of bills should be viewed in order to collect additional information, as well as arguments for and against the solutions proposed there.

Intrusion of federal laws into the competence of local authorities. Politicians and publicists have repeatedly pointed out the inconsistency of a number of regional laws with the Constitution and the laws of the Russian Federation. At the same time, the fact remains that a large number of federal laws, in violation of Art. 130 and 131 of the Constitution of the Russian Federation and paragraph 2 of Art. 11 of the Land Code of the Russian Federation intrudes into the competence of local authorities.

For example, the same Land Code of the Russian Federation dictates to local authorities how they should evaluate their land, to whom and under what circumstances they should sell it, etc.

Helpful and very instructive Foreign experience legislative technology. In many European countries, rules have been steadily applied for many years, concerning not only the ways of drafting legislative texts, but also their preparation in terms of the correct choice of the subject of regulation and the form of the act. The relevant requirements have been universally recognized. Thus, on June 10, 1991, the Federal Minister of Justice of Germany approved the "Handbook on the Compliance of Laws and Regulations with Current Law and Their Uniform Formation". The recommendations give characteristics of the criteria for determining the subject of regulation, the concept, the main and auxiliary means, the wording of legal prescriptions, the procedure for drafting the primary law and the amending law, legal regulations and promulgation of new editions of laws.

In Poland, France, the Czech Republic, Hungary, there are technical and legal rules contained either in the regulations of parliaments or in special documents of governments and ministries of justice. A kind of unification in this area is facilitated by the recommendations of the European Association for the Assistance to Legislation, the Council of Europe glossaries on local self-government, etc.

What is advisable to do? In our opinion, a number of issues need to be addressed:

a) to develop and approve by the Decree of the Government of the Russian Federation "General Rules of Legislative Technique". This will ensure that measure of uniformity that will improve the quality of all legislative acts;

b) speed up the adoption of the Federal Law "On Normative Legal Acts" (after the first reading), which should contain the basic characteristics of laws. Thus, the foundations of the official system for preparing the texts of legal acts will be laid;

c) complete the work on the Classifier of Legal Acts, which has been in progress for several years;

d) introduce training of civil servants and deputies in the basics of legislative technique. This can be done in the advanced training system, IPC, etc. Such a special course is also possible in law schools;

Thus, the problems of legislative technique are becoming relevant in the context of the growing volume of lawmaking and the complex process of law enforcement. Their effective scientific - practical solution is extremely necessary.

Conclusion

legislative technique law conflict

concept of legislative technique,

legislative elements.

In general, legislative technique can be defined as a system of historically established, based on the achievements of the theory of law and proven by the practice of rule-making rules, techniques and means used government bodies in the process of building codes, individual laws, articles and their elements, in order to further improve their form. When developing a modern definition of legislative technique, one must constantly remember that its main purpose is to solve the problems of the relationship between the content and form of law. Its purpose is to give the laws a form that would fully correspond to their content and meet the requirements of accessibility, simplicity and clarity.

The main rules of legislative (legal) technique are: the unity of the content of the legal norm and the form of its expression; logical sequence of presentation, the relationship of normative instructions placed in the act; lack of internal contradictions; the maximum compactness of the presentation of the rules of law with the depth and comprehensiveness of the reflection of their content; clarity and accessibility of the language of normative acts; accuracy and certainty of the wording and terms used in the legislation.

The most important of the rules of legal technique is the unity of the content of the legal norm and the form of its expression. According to this rule, the rule of law should be stated by means of normative legal prescriptions, legal formulas of various types, allowing a uniform and unambiguous understanding of its content. However, this rule is not implemented in all draft technical regulations. Thus, in most drafts, there is an insufficient number of norms of a mandatory nature that establish legally binding specific minimum safety requirements. Bills in most cases refer to various types of technological regulations, instructions, technical documentation, technical files, assuming the establishment of safety standards in these documents, but without disclosing their nature.

It is necessary to comprehensively prepare for the development and adoption of a new law, which should be an event in public life, become a turning point in it in a group of similar problems. This means taking stock of the regulatory legal framework, clarifying its negative and positive sides, reasons for poor performance. For the operation of a normative legal act, the period necessary for the study and development of the act by officials and other law enforcers, its implementation in practice, the accumulation of experience in compliance, the beginning of analysis and generalization in order to eliminate possible gaps, contradictions, conflicts and other shortcomings.

List of used literature

1. Alekseev S.S. General theory rights. T. 2. M.: Legal Literature, 1982.

2. Bashmakov A. Legislative technique and national law // Journal of Min. justice. 1904. No. 1.

3. Bentham I. Tactics of legislative assemblies. - St. Petersburg, 1907.

4. Big legal dictionary / Ed. AND I. Sukharev, V.D. Zorkina and others. M.: INFRA-M, 1998.

5. Butkevich F.P. Civil Code. System and plan for the codification of laws. - Warsaw, 1905.

6. Vlasenko N.A. The language of law. Irkutsk, 1997.

7. Legislative technique / Ed. Yu.A. Tikhomirov. M., 2000.

8. Ivlev Yu.V. Logic for lawyers: Textbook. Publishing House "Legal College of Moscow State University", M., 1996.

9. Iering R. Legal technique. - St. Petersburg, 1906.

10. The constitutional legislation of Russia. M.: Gorodets. Formula of Law, 1999.

11. Lyublinsky P.P. Technique, interpretation and casuistry of the criminal law. // Notes legal. fak. Petrograd University. - P., 1917. Issue. V. C. 2.

12. Lyublinsky P.P. Technique, interpretation and casuistry of the criminal law. // Notes legal. fak. Petrograd University. - P., 1917. Issue. V

13. General theory of state and law. Academic course in 2 volumes. T. 2. Theory of law. M., 1998.

14. General theory of law. M.: Publishing house of MSTU im. N.E. Bauman, 1995.

15. Okunkov L.A., Roshchin V.A. Veto of the President, M.: Gorodets. Formula of Law, 1999.

16. Pigolkin A.S. Preparation of draft normative-legal acts. Moscow: Legal Literature, 1968.

17. Polenina S.V. The quality of the law and the effectiveness of legislation // Soviet state and law. 1987. No. 7.

18. A set of comments on the draft Special Part of the Criminal Code, developed by the editorial commission (Remarks on the chapters of the project on damage and theft of property). - St. Petersburg, 1890. T. 4.

19. Sorokin V.V. On the systematization of transitional legislation // Journal of Russian Law. 2001. No. 7.

20. Tagantsev N. S. Russian criminal law. - SPb., 1902. T. 1

21. Theory of state and law. M., 1997.

22. Tikhomirov Yu.A., Kotelevskaya I.V. Legal acts. Moscow: Yuriinformtsentr, 1999.

23. Unkovsky M.A. On the ambiguity of legislation as a social disaster, and on the closest ways to eliminate it. - St. Petersburg. 1913.

24. Shugrina E.S. legal writing technique. M.: Delo, 2001.

25. The language of the law. M.: Yurid. lit., 1990.

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Legislative technique- the most important component legal technology.

Legal technique - a set of rules, techniques, methods of preparation, drafting, execution of legal documents, their systematization and accounting.

The following types of legal technique: legislative (law-making) technique, interpretation technique, technique for systematizing normative legal acts, technique for accounting for normative acts, technique for individual acts, which is a set of specific means, rules and techniques of the most optimal legal regulation of social relations.

1. Means of legal expression of the will of the legislator :

- normative construction- the rule of law should be expressed in the form of a rule-prescription (hypothesis - disposition; hypothesis - sanction);

- system building- the rule of law must be expressed as a logical norm (hypothesis - disposition - sanction);

- industry typification- each rule of law should be placed in the appropriate branch of law.

2. Means of verbal and documentary presentation of the text of the document:

- requisites(name of the act, its title, date of adoption, entry into force, signature, etc.)

- structural construction- a certain order of arrangement of the material, its dismemberment and consistency;

- legal terminology- a set of words and phrases in which legal concepts are expressed;

- style of legal act- a system of techniques for the most appropriate use of language means in regulatory documents.

The means of legal technique are:

1. Legal axioms- provisions, self-evident truths that do not require proof in the legal process (people are born free and equal in rights; one cannot be a judge in one's own case; any doubt is interpreted in favor of the accused; liability can only come for guilt; the law has no retroactive effect; no crimes without being specified in the criminal law).

2. The concept of a normative legal act - abstract public idea, built either on the basis of experience or on a purely speculative basis, put as the basis of a normative act. This is a system of knowledge about one or another fragment of legally significant activity, a model of a legal phenomenon (the concept of citizenship in constitutional law, the concept of property in civil law).

3. Legal construction- an ideal model of social relations or individual elements regulated by law, serving as a method for cognizing law and social relations (composition of an offense, composition of a legal relationship, legal entity, composition of a transaction).

4. legal symbol- this is a conditional image protected by the state, a distinctive sign, which is a visible or audible formation, to which the subject of lawmaking gives a special political and legal meaning, not related to the essence. This education. Legal symbols are a kind of means of formalizing legal content in order to give it clarity, certainty, lapidarity and imagery.

5. Constitutional amendments- reception of legal technique, consisting in changing and supplementing the current Constitution. It is carried out in a special complicated manner, established, as a rule, by the Constitution itself.

6. Classification- reception of legal technique, consisting in the division of legal phenomena into groups, types and sections.

7. Notes in the normative legal act- a special technique of legal technique, which is an element of auxiliary graphics. It is used in the design of non-standard content, additional material and may contain legislative definitions, schemes, tables, lists.

A special tool of legal technique is disclaimer- a condition (statement, provision) that has a special normative-lexical form, which partially changes the content or scope of the rule of law, creates a new legal regime, acts as a form of coordination of interests and generates certain legal consequences.

Forms of normative expression of legal reservations - those agreements, terms and logical and linguistic constructions, with the help of which reservations are expressed (established) in regulatory acts (“as a rule”, “except in cases”, “except”, “at least”, “ if necessary", "having in mind", "regardless of", etc.)

Legislative technique concerns the rules, means, techniques and requirements for the formation and formulation of regulatory legal acts. Legislative technique is one of the main components legal mechanism of the lawmaking process, which is understood as a set of specific legal means of forming legal norms.

Legislative technique has two main purposes. First, rationally, adequately handle public relations, to avoid gaps, to state normative legal acts quite clearly, unambiguously, definitely and at the same time quite briefly, economically, to a certain extent uniformly, standardly.

Another goal of legislative technique is focused on the subjects - addressees of normative legal acts and consists in making normative acts understandable enough, clear for the persons to whom they are addressed, so that they do not have doubts about their rights and obligations provided for by normative acts.

There are three main groups of rules of legislative technique:

A) Rules related to the external design of regulatory legal acts. Any regulatory legal act must have the appropriate details that would reflect its legal force, subject of regulation, scope, give it officiality - the name of the type of regulatory legal act (law, decree, resolution, etc.), the name of the body that issued it , the name of the act, reflecting its content, the subject of regulation, the date and place of its adoption, registration number, signature of the relevant official, etc.

b) Rules relating to the content and structure of a normative act.

The regulation must have sufficient certain subject of regulation, and designed to regulate homogeneous social relations. It should not regulate relationships of various kinds and types. Relations that are the subject of regulation of different branches of law should be regulated by special acts.

Regulatory act must not contain spaces, avoid exceptions and referrals whenever possible.

- The regulation of important fundamental issues should not be obscured by secondary issues. This must be facilitated by a certain structure of a normative legal act, which is based on a logically consistent presentation of the act.

Major normative legal acts may consist of two parts, not counting the title: an introductory (or preamble) and a ruling. The preamble indicates the reasons, reasons, goals for issuing a normative act. The operative part sets out the rules of law. The operative part at the end of the act may contain instructions that determine the time and procedure for the entry into force of the normative act, as well as instructions that cancel the validity of other acts. As for the laws of the Russian Federation, designed for a long period of validity, then usually the procedure for putting laws into effect, the abolition of other regulatory legal acts are determined, as a rule, by a special act.

Among the rules relating to structure of the normative act, can be called:

Rules of a more general nature should be placed at the beginning of a normative legal act;

Homogeneous norms should be distinguished, stated compactly, without dispersion in different parts of the normative act; in large normative acts they should be separated into chapters, sections, parts; each chapter, section, part must have a title.

Each chapter of a normative legal act consists of articles, which in turn can be divided into parts (paragraphs, paragraphs); the numbering of articles should be continuous, i.e. one numbering should go through all sections, parts and chapters. The numbering of articles should be constant, stable.

c) Rules and techniques for presenting the norms of law (language of normative legal acts).

- The language of the legal act- in the text of a legal act, elements of the professional language of jurisprudence, special legal concepts, terms, constructions should be organically combined with commonly used words and verbal expressions of modern literary language, as well as with professional terminology of a non-legal nature (such as biological agents and toxins, epizootic, etc.).

The text of a legal act should not use verbal archaisms and neologisms, various figurative expressions, analogies, metaphors, ambiguous figures of speech, etc.

In general, a legal act must have a unity of style that corresponds to the goals, content and meaning of an official document that has legal force.

The main points of non-compliance with the rules of legislative technique can be expressed in the following:

1) when new normative legal acts are issued, the existing ones are not canceled or amended;

2) previously issued acts are canceled or amended without their exact and exhaustive enumeration;

3) amendments to existing regulatory enactments are introduced by non-normative enactments;

4) changes in acts occur without the simultaneous approval of a new edition of their respective sections or articles;

5) certain general rules designed for a long-term effect are included in operational orders or acts that are valid for a limited period;

6) by individual orders, the effect of certain normative acts extends to social relations not provided for by these acts;

7) there is no necessary coherence and editorial linkage between acts issued on the same issue, which causes a contradiction between regulatory legal acts;

8) the new act does not fully regulate the relevant issue, as a result of which a number of previous acts on the same issue cannot be completely repealed;

9) the acts are presented in a complex, obscure language, suffer from unjustified verbosity.

In particular, the following points can contribute to the solution of problems related to legislative technique:

1. It seems appropriate to develop clear criteria for the quality of legal acts, identify typical legislative and law enforcement errors, develop effective techniques, ways to overcome them;

2. One of the effective measures to improve the quality of federal laws and laws of the constituent entities of the Russian Federation, the introduction of uniform principles and modern technologies could be the "Exemplary Rules for Legislative Techniques" and the Federal Law "On Normative Legal Acts of the Russian Federation";

3. Increasing the professional level of persons participating in the legislative process could be facilitated by ongoing seminars held by leading scientific and educational institutions of the Russian Federation together with deputies of the State Duma, employees of the State Duma Staff, the Government Staff and other persons involved in legislative activities.

2.1. The concept, subject and method of legislative technique as a methodology.

The concept of "legislative technique" can be given many definitions. This diversity is explained by the fact that different researchers differently understand the essence of legislation, its role in the implementation of legal regulation, the essence and forms of legislative influence on the behavior of individuals and on social relations in general. However, regardless of the theoretical setting, legislative technique can be seen as:

1. Methodology (system of techniques and methods) of lawmaking;

2. System of knowledge about this process;

3. Academic discipline (the essence and meaning of which were revealed above);

4. The system of legal norms regulating the process of creating normative legal acts.

Let's start with the definition of legislative technique as a methodology.

Any technique can be defined as a set of means of human activity created for the most effective implementation of creation, activities associated with the creation of something necessary for the normal life of people. Legislative technique is associated with such a specific type of human activity as lawmaking, the process of creating normative legal acts through external expression and formal consolidation of the rules of law.

Legislative technique can be defined as a system of techniques, methods, methods and principles for creating and changing a system of regulatory legal acts . This broad definition makes it possible to include in the concept of legislative technique the entire process of forming a system of legislation: both ways of formulating normative legal prescriptions and presenting them in text form, and the process of developing draft normative legal acts, and procedures for their adoption, and methods for their improvement, and methodology bringing them into line with each other, and their systematization, and social factors influencing the legislative process and much more. Such an integrated approach makes it possible to study lawmaking, legislative regulation of social relations as a single system of interrelated and interdependent elements, which is an integral part of the legal system of society. This makes it possible to take into account all aspects of the technology of making laws and by-laws without exception, not to miss any of the factors influencing this process, and is a guarantee of the completeness and reliability of the research and the truth of the conclusions made on the basis of these studies.

Another, narrower definition of legislative technique can be given as systems of techniques and ways of presenting the meaning of prescribing a rule of law in articles of a normative legal act. Such a definition refers to the legislative technique only the methodology for the formation of a specific regulatory legal act, its structuring, presentation of its text, regardless of the factors that affect the work of its authors. This approach allows you to study in more detail the technique of formulating a specific regulatory legal prescription, creating a specific act of legislation, but it does not make it possible to study the entire process of lawmaking in a complex, does not take into account the systematic nature of legislation, and excludes factors that affect the activities of the legislator from the range of issues under study. It seems that a narrow approach, a narrow definition of legislative technique is not suitable for the professionalization of the work of a participant in the legislative process, whose activities are only an integral part of a complex complex of formation of a unified system of legislation, none of the elements of which can independently exist and act.

Legislative technique should be studied precisely as a set of principles and methods of lawmaking, a single process of creating a system of normative legal acts.

The activity of the legislator is determined, first of all, by its main task - to formally express and consolidate the rule of law in the law in order to create and change the system of legislation, the formation of its elements. Therefore, the main subject of influence of legislative technique as a methodology, the sphere of life activity for which legislative technique offers a system of methods, is such a special type of creative, conscious and socially significant activity as lawmaking .

Legislation can be defined as the process of creating a system of legislation, expressed in external expression and formal consolidation in normative legal acts of the rule of law. This process includes legislative knowledge, creation and systematization of normative legal acts (legislative process) and the study of the results of the impact of these acts on social relations.

Lawmaking (like any other creative creative process) is characterized by the organic unity of its three main components, which the science of legislative technology studies:

knowledge- awareness of the objective social necessity underlying legal regulation, comprehension of the socially necessary behavior of participants in public relations, which should become the goal of legal regulation, understanding the essence of the rule of law to be embodied in legislation;

activity - legislative process, a system of procedures for the creation of normative legal acts, their adoption, modification and systematization, as well as the relations accompanying these procedures;

analysis of results– assessment of the regulatory possibilities and significance of the created legislation, analysis of its consequences from the point of view of objective social necessity.

These three components in their dialectical mutual transitions constitute a relatively complete and logically unified cycle of lawmaking. In order for the legislation to adequately reflect the objectively existing norms of law, the processes taking place in society, it is necessary to constantly discover, study and skillfully use the objective laws that guide these processes. That is why, in order to effectively create a system of normative legal acts from a regulatory point of view, it is necessary to know the objective necessity, those difficult conditions, factors and circumstances that determine social life and development and therefore are subject to legal regulation. This knowledge also includes the establishment of the goals of legal regulation, the definition of the meaning of the normative legal act to be created. At this stage, the essence of the rule of law, the meaning of legal prescriptions, is realized and comprehended.

Further, cognition is followed by activity, which is its logical continuation. The transition from cognition to activity is a laborious, multi-stage deployment and concretization of knowledge in regulatory legal acts. There comes a stage of creation of the law (or by-law), divided in turn into a number of stages. The result of the legislative process, its end product is a normative legal act.

And the last stage of lawmaking is the process of evaluating and analyzing the results of the process of creating legislative acts, establishing the compliance (or inconsistency) of the results of legislative activity with the goals of legislators. The results of such an analysis allow us to conclude that it is possible to end or need to continue the legislative process.

Legislative technique is a methodology for the implementation in an objective form - in the form of legal acts of public authorities - an abstractly existing rule of law, which is an expression of the objective necessity of social life and development.

Structurally, legislative technique includes 3 subsystems:

· technique of legislative knowledge- the most associated with general theoretical legal sciences, such as the theory of state and law and the philosophy of law, the methodology of understanding the objective social necessity underlying legal regulation, establishing the facts of the imperfection of the system of normative legal acts, opportunities, directions and forms of its improvement;

· rule-making technique a system of techniques and methods for creating specific regulatory legal acts, procedures for their official adoption and approval, as well as combining them into a single system (systematization) ;

· technique for analyzing the results of lawmaking - a technique for assessing the compliance of the results of lawmaking with the original goals of the process to conclude on the degree of compliance of these results with the original goals of the activity.

The most important of them is the rule-making technique, it represents the semantic core, the axis of legislative technique. However, this does not reduce the importance of the other two components, because legislative technique as a science can exist only as a system of these three components. Each of them separately cannot exist and act as a system of knowledge.

Legislative technique as a methodology includes a whole range of techniques and methods that determine the process of lawmaking:

Determining the need to create a normative legal act (or make changes and additions to existing legislative acts);

precise definition of the true content of the rule of law subject to formal expression, which is derived from a complex of fundamental interests social life and development;

Establishing the form and method of expression and consolidation of a legal prescription;

· accurate and adequate expression of the will of the legislator in textual form (logical, stylistic and linguistic techniques);

control over the activities of all participants in the legislative process aimed at ensuring the legal nature of its activities, exclusion from the number of factors that determine the content of the created normative legal, non-legal motives of legislation that do not reflect (for one reason or another) the true objective interests of public life and social development ;

Formation and expression of the content of the rules of law in the legislation through regulatory legal prescriptions;

layout and compilation of normative legal acts, its semantic and structural systematization;

· Procedures for the development, approval and adoption of bills (drafts of by-laws normative legal acts);

systematization of legislation, bringing normative legal material into a certain order in order to facilitate law enforcement (in specific cases);

· filling gaps in the current legislation, as well as correcting conflicts between regulatory legal acts;

· study of the results of lawmaking, determination of the extent to which participants in lawmaking activity achieve the goals of their activities.

The techniques and methods of lawmaking that make up the methodological complex of legislative technique have a strictly defined functional purpose that determines them. The functions of legislative technique predetermine the very existence of this entire legal institution, its structure, as well as the content of the main methods included in this institution. Among the main, most important of these functions, in particular, are the following:

· assistance to the participants in the legislative process to establish precisely the true meaning of the norms of law, in a concentrated form, expressing the main interests and patterns of social life and social development in order to consolidate in the articles of normative legal acts;

ensuring the true legal nature of legislation, the exact correspondence of the content of the created normative legal acts to the fundamental interests of the life and development of society, the exclusion of the possibility of influencing the formation of this social regulator of non-legal factors (personal aspirations of legislators, the interests of narrow social groups that are contrary to the general direction of life and development of society, political conjuncture, populist aspirations, etc.);

· promotion of accurate and complete reflection of the norms of law, and only the norms of law, in the normative legal acts being created;

Ensuring the clarity of the instructions set forth in the legislation to the widest possible range of subjects of legal regulation;

exclusion of the possibility of different interpretations of legislative acts, promotion of a common understanding of the meaning of the instructions contained in them;

· facilitating the implementation of regulatory legal acts as the most appropriate and convenient model of law-significant behavior of individuals and legal entities;

Contributing to the achievement of completeness, consistency and logical unity current legislation, the fight against both gaps and duplication of prescriptions expressed in regulatory legal acts;

· creating optimal conditions for improving existing legislation: updating, systematizing, correcting deficiencies;

Maintaining the longest possible viability of the normative legal acts being created, ensuring that they retain their legal nature and have a real opportunity to influence the behavior of participants in legal relations for the longest possible period of time.

The above functions of legislative technique as a methodology can be considered as the goals of using scientifically developed and substantiated techniques and methods of lawmaking. They allow us to draw a conclusion about the role that legislative technique plays in the activities of lawmakers.

2.2. Legislative technique as a science

Now consider the legislative technique as a system of knowledge, that is, as a science.

Legislative technique is, unfortunately, one of the least developed legal sciences in our country. In fact, it is fundamentally new system legal knowledge, which has a specific subject, method and functional purpose. However, despite the poor development, the need for a special scientific substantiation of lawmaking and the fact of the existence of a special legal science of legislative technique is practically not disputed by anyone.

Legislative technique is a special legal science located at the intersection of the theory of state and law and constitutional law (as a science). It is closely connected with both branch legal science and general theoretical science, but, nevertheless, retains its independence. The purpose of this science is to apply in practice in the course of legislative activity the achievements of the theory of state and law, to put into practice its main ideas and principles, to provide a theoretical basis for the legislative process. Legislative technique as a science is called upon to find a rational way to introduce theoretical knowledge about law into practice, in the process of creating a system of legal regulators of social relations as forms of external existence of objectively existing legal prescriptions. Thus, legislative technique can be categorized as technical and legal Sciences

Legislative technique as a science is a branch of knowledge about method of legislative technique. Item legislative technique can be in general view determine how lawmaking technique, that is a system of principles, techniques and methods used by legislators to implement the rules of law in articles of regulatory legal acts, to create and change a unified system of legislation, to form and improve its elements .

The science of legislative technique studies a special sphere of human life activity associated with external expression and formal consolidation in the system of normative legal acts of objectively existing norms of law. The main object of study of legislative technique as a science, the main source of knowledge, the main practical base (both for conducting research and for verifying and implementing achievements) is the activity defined by legislative technique as a methodology - lawmaking .

Legislative technique as a science includes the following main institutions:

basic principles of lawmaking;

· the main methods of knowing the need and determining the method of legal regulation;

· technical methods and ways of translating the meaning of the rules of law in the textual form of normative legal acts;

logic, language and style of the law;

· the main external factors influencing the formation of the system of legislation;

· the main techniques and ways of improving and systematizing the normative - legal material;

· technical rules for analyzing the results of lawmaking.

The emergence of legislative technique as a science is caused by the practical necessity of the scientific validity of legislative activity. This necessity determines the role and place of this legal science in the system of legal relations and its functional purpose.

Of all legal sciences, legislative technique is most closely related to theory of state and law, which not only provides a theoretical basis for legislative technique, but also provides practical justification for many specific provisions and methods. In addition, the science of legislative technique is closely related to such branch of legal science as constitutional law, which provides the basis for the formal regulation of many (but not all) lawmaking procedures. However, the general part of other branch legal sciences can also be considered as related to legislative technique. Of other legal sciences, one cannot fail to note the connection between legislative technique and legal psychology, which substantiates the possibility of effective impact of legislative prescriptions on people's consciousness.

Method Science Legislative technique as a system of techniques and methods of obtaining knowledge used in science to obtain knowledge about its subject, includes a whole range of general scientific and particular scientific methods. In general, the methodology of legislative technique is similar to the methods of such legal sciences as the theory of state and law and constitutional law. Science legislative technique uses are common methods applied by all sciences, and private used only by certain sciences.

Legislative technique can be attributed to the general scientific methods of science, in particular, analysis(the process of mental decomposition of the whole into its component parts) and synthesis(the process of mentally creating a whole from parts). Based on them, researchers get the opportunity to fully and objectively explore the theoretical issues of lawmaking as a single set of actions and institutions, to draw a conclusion about the nature of the relationship between the components of this complex. The same category of methods includes historical(study of legislative issues in the dynamics of their historical development) and logical(use in the course of the study of the law-making process and the methods, techniques and methods of the laws of formal logic used by its participants) methods. In addition, among the general scientific methods actively used in legislative technique, we can single out induction(a method of obtaining general knowledge about a class of objects based on the study of individual representatives of this class) and deduction(a form of inference from the general to the particular and the singular, characterized by the fact that new knowledge about an object or a group of homogeneous objects is derived on the basis of knowledge of the class to which the objects under study belong or
general rule applicable within a given class of objects) . Legislative technique and other general scientific methods of cognition are used.

The private scientific methods used by legislative technique as a science include a fairly large and peculiar set of techniques and methods. Systemic - structural method involves the study of the subject based on the assumption of its system-structural unity, the close interdependence of the main components of this subject, as well as the fact that the subject of study is an element of a larger system, and the structural elements of the subject themselves are systems. functional method involves the study of any subject in terms of its purpose, its role and functions. Formally - legal method means the study of the subject from the point of view of the legal regulation of its functioning (for example, the study of normative legal acts regulating the legislative process). Very important for legislative technique scientific modeling method when researchers create a mental ideal image of the object under study and study its properties, as well as the possibilities of its functioning and changes. Legislative technique is used in the same way comparative method, in which there is a comparison of certain elements of the subject under study and other phenomena of the surrounding world. Method of socio-legal research is used to study the effectiveness of existing regulatory legal acts, generalize the practice of their implementation, and identify public opinion that is important for participants in the legislative process. Comparative legal method allows you to explore the techniques and methods used for lawmaking in other legal systems and draw a conclusion about the possibility of their use in Russia. Legislative technique and other methods of scientific knowledge are used.

The above general and particular scientific methods for studying legislative techniques are applied in a complex manner, in close interconnection with each other. The system of these methods largely predetermines the close relationship between legislative technique and related legal sciences, such as the theory of state and law, constitutional law, philosophy of law, and some others.

2.3. Development of problems of legislative technique in Russia and abroad.

Legislative technique as a science has long attracted the attention of legal scholars.

The German legal school is distinguished by the greatest scientific development of the mechanism for creating a system of legislation. Germany gave the world a whole galaxy of outstanding jurists who developed a brilliant system of scientific concepts in the field of legislative technique. One of the first studies in this area was started by I. Bentham and R. Iering. Later, in the 20th century, the development of lawmaking techniques was continued by G. Dolle, O. Gierke, G. Kinderman, G. Weck, G. Hane and others. German scientists created the most important concepts in the field of logic, style and language of laws, which largely influenced on the process of formation of the legislation of modern Germany, they managed to substantiate the application of very many theoretical and legal and philosophical and legal theses in the legislative process, to connect general theoretical legal research with the course of their practical application in laws and by-laws. The main direction of development in the German school of legislative technology has traditionally been to provide the deepest possible scientific substantiation of the legislation being created, the most accurate and complete reflection of doctrinal legal conclusions in regulatory legal acts.

The French school of legislative technique is more practical in nature. Of the most famous French jurists who worked in the field of legislative technique, it should be noted F Zheny, S Dabin, R. Cabriac and some others. The studies of French jurists are not of such a deep theoretical, doctrinal nature as those of German ones, they are much more pragmatic, tied to the solution of specific problems by the participants in legislative activity. Perhaps in this regard, most of the developments of French lawyers in the field of legislative technique are not so much scientific monographs as practical guides and recommendations that can be used as a scientific and practical basis for the creation of specific regulatory legal acts. The French system of legal regulation of lawmaking techniques is distinguished by its detail, pragmatism and scrupulousness, which are given much more attention than large-scale and deep general theoretical developments. The basis of the French legislative technique is the desire to ensure a universal accurate and complete understanding of the meaning of the normative legal prescriptions set forth in the legislation by the most simple, designed for linguistic interpretation by a person who does not have special legal knowledge - the addressee of these prescriptions. Especially well French scientists have developed the scientific foundations of codification, the methodology of this process.

In Russia, the issues of improving legislation at the scientific level began to be dealt with in the second half of the 19th century. The increased attention of scientists and practitioners to the form of the laws of that time is evidenced by the discussion that unfolded in the legal literature about the draft Code of Criminal Punishments of 1885. So, in one of the reviews on the project it was written that: The simplification of legislation proposed by the project, by reducing to a minimum the number of definitions on theft of property, is achieved due to the completeness, clarity and certainty of the law. For future jurisprudence, the draft opens up the prospect of a number of difficulties, since the text of the law is too short to answer all the questions of law and action of life.”

The greatest interest of pre-revolutionary Russian lawyers in the problems of legislative technique manifested itself in the period from 1900 to 1917, i.e. at a time when a bourgeois revolution was brewing in Russia. At that time, such Russian scientists as N.S. Tagantsev, F.P. Butkevich, M.A. Unkovsky, P.I. Lyublinsky, A.N. Bashmakov and others. During this era, several very interesting scientific concepts developed in Russia.

P.I. Lyublinsky in his well-known manual “Technique, Interpretation and Casuistry of the Criminal Code” wrote that, being a changeable creation of human hands, legal law finds its strength in itself and only in this form is it an active, order-creating will. Therefore, the word of the legislator is a deed that only a God-gifted person succeeds in perfection, who can create an intuitively sacred legal order, consisting in living accordance with the soul of the people and real forces. Further, he noted that legal interpretation teaches us the art of developing the thought of the legislator and extracting the necessary content from it. But it is conceivable only when one gets acquainted with the technical methods used by the legislator in the construction of their norms. That is why P.I. Lublinsky believed that legal hermeneutics should be preceded by the study of legislative techniques based on practical experience in lawmaking and interpretation of the rule of law. It was practical experience that this one of the founders of the national school of legislative technique put at the forefront.

A different point of view on the problems of this science was held by another well-known Russian legal scholar M. A. Unkovsky. In one of his scientific works, he wrote that, undoubtedly, the experience in legislative technique, obtained by long-term participation in the drafting of laws, is far superior to that knowledge in this branch that is available to persons who have recently entered the field of legislative activity, which in most cases are elected members of legislative chambers, but that such experience cannot be called sufficient is already shown by the fact that those legislative acts that in different states came out from the pen of legislators before the introduction of an elective system into legislative institutions, also invariably after their publication caused darkness of bewilderment, requiring all sorts of additions and clarifications, both authentic and administrative and judicial. This outstanding lawyer defended the need for a scientific substantiation of the rules of legislative technique and put forward a number of interesting theoretical and legal theses concerning legislative technique.

However, unfortunately, pre-revolutionary domestic scientists did not try to connect their theoretical developments with practical recommendations for the creation of regulatory legal acts. There was also no unified state legislative concept based on serious scientific developments.

After the October Revolution, for some time, quite a lot of attention was paid to the issues of legislative technique, especially at the stage of formation of the foundations of Soviet legislation, which was radically different from the legislation Russian Empire. In the era of the formation of a new, planned as an advanced, legal system, a new legal ideology, a new concept was also developed for creating revolutionary legislation, the main advantage of which over the bourgeois one would be its nationality, and, consequently, the clarity and clarity of its provisions that do not allow double interpretation and other distortions and perversions of its essence. The main emphasis in the scientific developments of those years was placed on the need to simplify laws, to ensure their maximum comprehensibility to the general population and, at the same time, to ensure their legal nature. And most of the research in the field of legislative activity was carried out in the field of means of presenting the text of laws and the terminological system used in their presentation, in the field of developing the style and language of legislation. In 1931, under the Presidium of the All-Russian Central Executive Committee of the USSR, a special commission was created from scientists - lawyers and philologists, whose task was to develop scientifically based recommendations for improving the language of regulatory legal acts. The question of the need for careful development of the logic, language and style of the law was actively discussed in the scientific literature. In the late 20s - early 30s of the XX century, an interesting discussion was held, during which many valuable and original proposals were made regarding external design laws, ways of textual expression of normative legal prescriptions. Even some prominent Soviet party and state leaders, far from science, could not deny themselves the pleasure of taking part in this work.

However, with the formation and strengthening of the administrative-command management system in our country, interest in legislative technology gradually faded away. This was facilitated by the scornful attitude towards “formal” requirements and rules for drafting laws, established among semi-literate party and state functionaries, strict party-ideological control over scientific developments, as well as the physical extermination of the flower of the young Soviet law school. However, it cannot be said that research in this area of legal science has stopped completely - some researchers continued to search for scientific foundations for improving Soviet legislation.

The revival of the domestic school of legislative technique falls on the 60-90s of the XX century. At this time of the heyday of domestic legal science, the main scientific concepts in the field of lawmaking are being formed. It was they who determined the current state of domestic legislative technology as a science.

At present, the domestic science of legislative technology is experiencing a period of growth. Scientific methods of legislative work are being developed, the experience of the practice of creating normative legal acts is being comprehended and analyzed, foreign experience and concepts of foreign authors in the field of legislative technology are being actively explored.

Increasing interest in legislative technique in modern Russia due to a whole range of factors associated with changes in the state of legal regulation. First of all, attention to this science is due to a significant increase in the role of legislation in the legal regulation of social relations and in general in social life, as well as intensified legislative work in the course of legal reform from the beginning of the 90s of the last twentieth century to the present. In addition, the interest in the methodology for the formation and improvement of legislation is associated with an increase in the role of legislative representative bodies in the life of the state and society, a change in the nature of their formation and work, with the need to systematize, professionalize and streamline their activities. Also, most researchers note that modern conditions there is an urgent need to improve teaching in law schools, to improve the quality of education of specialists - lawyers, which, without knowledge of the methodology for the formation of a system of normative legal acts, cannot be considered as a logically complete and full-fledged professional and, moreover, scientific training. “One of the urgent tasks not only of law schools, but of all higher education is the transition from learning focused on the cognitive mastery of disciplines to learning aimed at developing the skills and abilities of highly professional subject-practical scientific activity»

Among the most important works of modern Russian researchers devoted to the issues of legislative technique, it is necessary to single out the works of D. A. Kerimov, who creates an important philosophical and legal basis for research in this area, Yu. A. Tikhomirov, who developed a lot of very interesting practical recommendations for legislators, T.V. Polenina, A.S. Pigolkin and some others. It is their developments that constitute the scientific basis of the modern Russian school of legislative technology.

It can be stated that as a result of the active scientific development of the technique of forming a system of legislation now, at the beginning of the 21st century, the professional level of domestic legislators has grown significantly compared to the beginning of the 90s of the last 20th century, when a fundamental reform began in our country. Technologies of legislative actions and procedures are being developed in a doctrinal manner, on the basis of these developments, methods are created and normatively approved, which become obligatory and act as systematizing and unifying the legislative process of the beginning.

Nevertheless, the general level of scientific substantiation of lawmaking in our country is, unfortunately, far from perfect. This is manifested in the numerous facts of legislative errors that lead to most of the flaws in modern Russian legislation.

It can be assumed that the main problem of legislative technique in modern Russia is lack of unified scientific concepts about lawmaking. In domestic science, there is still no comprehensive system of scientific views that would cover all aspects, all stages, all forms of lawmaking, linking together theoretical developments and practical rules and techniques for creating, improving and changing normative legal acts and their systems. Only certain aspects and problems are scientifically developed, science as a whole, the relationship between the main scientific institutions, the practical application of existing theoretical developments do not receive due attention from developers. Perhaps this explains the imperfection of the domestic legal regulation of the process and technology of creating a system of laws and by-laws.

However, taking into account the interest of domestic legal scholars in issues of legislative technique, one can hope for the early creation of such unified scientific concepts. Combining and giving an integrated character to scientific developments in the field of legislative technology (taking into account the works of foreign researchers) will enable domestic legislators to base their professional activities on a doctrinal basis and significantly increase the level of normative legal acts they create.

2.4. Normative - legal regulation of relations related to the technique of lawmaking.

Unfortunately, in our country there is still no unified system of normative legal acts regulating the technique of creating and improving the system of legislation. There is a legislative regulation of only some separate, unrelated issues of lawmaking (mostly related to the process of work on them by state authorities).

In our country, the process of adoption of normative legal acts, their entry into force and their status is regulated by a fairly large amount of legislation. There are quite a lot of these acts, but they are weakly interconnected, the prescriptions contained in them suffer from vagueness and casuistry.

First of all, the Constitution of Russia must be attributed to the sources of law of legislative technique as a component of the Russian system of law. The Basic Law of our country establishes some provisions related to the status and legal force of normative legal acts (Art. 15, Art. 90, Art. 108, Art. 115), the procedure for adopting laws (Art. 104 - 108 Art. 134 - 137) , establishes some principles of lawmaking (Article 3), separates the subject of regulation of the system of federal legislation and the systems of legislation of the constituent entities of the Federation (Articles 71-73, Article 76), contains a list of issues regulated by federal laws and federal constitutional laws and regulates some other issues lawmaking.

The laws in the legal regulation of social relations related to the technique of creating, changing and improving the system of legislation at the moment in our country, oddly enough, do not play a big role. And this is one of the manifestations of the lack of a unified system in the legislative regulation of this issue. Most laws related to legislative technique regulate secondary issues, such as the competence of certain public authorities in the creation of regulatory legal acts and establish specific differences between such acts (for example, the Customs Code of the Russian Federation of May 28, 2003, Federal Law of July 10, 2002. No. 86-FZ "On the Central Bank of the Russian Federation (Bank of Russia), Federal Constitutional Law of December 17, 1999 No. 2-FKZ "On the Government of the Russian Federation" and some others).

However, in the system of legislation of our country there are laws that regulate quite important elements of lawmaking. Federal Law No. 5-FZ of July 14, 1994 “On the procedure for publishing and coming into force of federal constitutional laws, federal laws, acts of the chambers of the Federal Assembly” regulates the procedure for official publication as a mechanism necessary for the entry into force of the basis of the legislative system - laws. Federal Law No. 154-FZ of August 28, 1995 “On the General Principles of Organization of Local Self-Government in the Russian Federation” establishes the status of regulatory legal acts of local self-government bodies. The Law of the RSFSR dated March 22, 1991 No. 948-1 “On Competition and Restriction of Monopolistic Activities in Commodity Markets” invalidates in advance all regulatory legal acts that restrict the freedom of economic activity and create an opportunity for monopolization in one form or another of the market, as well as fixes a whole list of issues as a subject of legal regulation exclusively by Decrees of the Government of Russia. But even these laws regulate only separate (and rather narrow) issues and fragments of legislative technique.

Some laws establish a special status for certain normative legal acts: The Budget Code of the Russian Federation establishes the procedure for legal regulation of budgetary issues, carried out only in the form of laws, Federal Law of July 15, 1995 No. 101-FZ “On International Treaties of the Russian Federation” regulates the process of ratification and denunciation of Russia's international treaties by adopting special laws, Federal Law No. 33-FZ of March 4, 1998 "On the procedure for the adoption and entry into force of amendments to the Constitution of the Russian Federation" determines the procedure for amending the Basic Law of the country.

Sub-legislative acts in our country now regulate the technical side of legislative activity in more detail and purposefully. It is they who play the leading role in the legal regulation of the process of drawing up, preparation and improvement of normative legal acts, which occupies a leading place in the legislative process. This is understandable - technical issues traditionally receive holistic and systemic regulation precisely in by-laws - laws for this are too general and fundamental.

By-law normative - legal regulation of technical issues, lawmaking is characterized by a large volume and diversity. Technical issues of creating laws are regulated by normative legal acts issued by executive authorities at various levels.

Among the most significant by-laws that carry out legal regulation of issues of legislative technique, first of all, it is necessary to single out the Methodological Rules for organizing legislative work of federal executive bodies (approved by Order of the Ministry of Justice and the Institute of Legislation and Comparative Law under the Government of Russia dated January 10, 2001 No. 3/51); These documents regulate the process of preparation of draft federal laws only by executive authorities (ministries and departments), but can also serve as a methodological basis for the legislative activities of other bodies. The preparation of draft by-laws is regulated by the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration (approved by Decree of the Government of the Russian Federation of August 13, 1997 No. 1009).

In addition, it should be noted Decree of the Government of the Russian Federation of April 15, 2000 N 347 "On improving the legislative activities of the Government of the Russian Federation", which clarifies some points and fixes a special place in the creation of draft laws by the Government of Russia of such a body as the Ministry of Justice. A special form of participation of the Government of Russia in the development and approval of the draft law is regulated by the Decree of the Government of the Russian Federation of April 11, 1994 "On the procedure for the preparation by the Government of the Russian Federation of conclusions on draft laws sent by the State Duma." It is also necessary to mention the Recommendations on the conduct of legal expertise of regulatory legal acts of the constituent entities of the Russian Federation, approved by Order of the Ministry of Justice of October 29, 2003 No. 278, which fix the basic rules for conducting legal expertise of regulatory legal acts of the regions of Russia and regulate the procedure for verifying the legality and constitutionality of acts, belonging to the system of regional legislation.

A very special place in the system of domestic legislative regulation is occupied by such specific by-laws as the Regulations that regulate the work of state bodies - subjects of legislative activity and determine their internal structure and the competence of structural components. These acts serve as the main documents that determine the formal procedure for creating laws and by-laws. In our country, from documents of this type related to legislative technique, one can single out the Regulations of the Federation Council of the Federal Assembly of the Russian Federation (approved by the Resolution of the Federation Council of the Federal Assembly of the Russian Federation of January 30, 2002 No. 33-SF), the Regulations of the State Duma of the Federal Assembly of the Russian Federation , (approved by the Decree of the State Duma of the Federal Assembly of the Russian Federation of January 22, 1998 No. 2134-II GD), the Regulations of the Government of the Russian Federation (approved by the Government Decree of June 18, 1998 No. 604), as well as the Regulations for the drafting activities of the Ministry of Justice of the Russian Federation (approved by the Order of the Ministry of Justice of the Russian Federation dated January 19, 2001 No. 14).

In addition to the regulations, there are several more normative legal acts that regulate and fix the legal status of public authorities that perform special functions in lawmaking. Among them, we should mention, in particular, the Regulations on the Commission of the Government of the Russian Federation on legislative activity (approved by Decree of the Government of Russia dated February 1, 2000 No. 93), which determines the form of work of a very specific subject of the legislative process.

Many central government bodies in our country (ministries and departments) have their own acts regulating the legislative activities of these bodies. As an example, we can cite the Regulation of the Central Bank of September 15, 1997 N 519 “On the procedure for the preparation and entry into force of regulatory acts of the Bank of Russia”, the Regulation on the procedure for preparing regulatory legal acts of the Ministry of Transport of the Russian Federation and sending them to state registration, approved by order of the Ministry of Transport of the Russian Federation of July 12, 2001 N 116 and some other acts. This departmental rule-making is not of great importance for legislative technique and, basically, is a repetition and concretization of the provisions of the above documents of higher legal force in relation to specific bodies.

The main problem The legal regulation of issues of legislative technique in our country is still the lack of a single normative legal act that could become the basis, core, lay the fundamental foundations for such regulation. Russia needs a law that would define the types of existing normative legal acts, their form, principles and basic methods of their creation. At the federal level, there are only drafts of the Federal Law “On Normative Legal Acts of the Russian Federation”, none of which, despite the long overdue need, has never been submitted for discussion in parliament. Among them, attention is drawn to its high level and scientific elaboration of a draft of such a law, prepared by specialists from the Institute of Legislation and Comparative Law under the Government of the Russian Federation. In this draft law, a whole chapter (“Rules of Legislative Technique”) is devoted to the rules of legislative technique, which includes 10 articles (Articles 45-54). It should be noted that the rules of legislative technique contained in the draft law concern not only federal laws. They extend their effect to other normative legal acts.

In general terms, we will characterize the most important rules of legislative technique contained in this draft law. It defines the concept and main types of normative legal acts, the relationship between them, the delimitation of subjects of regulation between them, regulates the process of planning legislative activity, as well as creating the concept of a normative legal act, determines the rules and methodology for the examination of draft legislative acts, contains a list of details, establishes a logical - semantic system and structure of a normative legal act, lists its main structural components and rules for their preparation, contains a number of requirements for the language and style of presentation of prescriptions, the procedure for making references and references, regulates the process of changing, supplementing and canceling normative legal acts of Russia , systematization of regulatory and legal material, and also contains provisions on many other issues related to legislative technology (the procedure for official publication and entry into force of regulatory legal acts, the effect of these acts on a circle of persons, in time and space, rules interpretations of legal regulations, etc.)

Of course, not even the most voluminous, even the most well-prepared law will be able to regulate the entire process of lawmaking; However, the existence of a single law on normative legal acts could help make legal regulation in this area unified and systemic, and therefore more complete and consistent. Let's hope that the work of the authors of this draft law - outstanding researchers in the field of legislative technology - will not be lost, will not remain only the subject of scientific study and will form the basis of a unified system of legal regulation of the technology of the entire legislative process.

Oddly enough, the systems of legal regulation of the legislative process and legislative technique in the constituent entities of the Russian Federation are distinguished by a great system. Separate regions of Russia, ahead of the federal center, have already created unified normative legal acts regulating the process of creating and changing the system of legislation and serving as the axis of legislative technology as an institution of law. Such acts in the subjects of the federation are issued more often in the form of regional laws (laws of the subjects of the federation). And the experience of regional regulation of relations in the field of legislative technique should be taken into account and applied when creating an appropriate institution of federal legislation.

From regional laws containing provisions on legislative technique, as an example of successful legislative regulation, the process of creating and formalizing regulatory legal acts, one can cite the Law of the Irkutsk Region “On laws and other regional regulatory legal acts”. Article 24 of this law (“Basic Rules of Legislative Techniques”) contains the rules for drafting regional laws. These rules concern mainly the language and style of regional laws, as well as their structure. Moreover, it should be noted that they are presented in a rather abstract form (and therefore their concretization is required) and, therefore, serves to express only the most important, fundamental provisions and can serve as a basis for creating more detailed and by-laws devoted to the regulation of more specific issues. The presence of this law has a very positive impact on the technical condition of the legislative acts issued in the Irkutsk region.

In the Law "On normative legal acts of the Tver region" an attempt is also made to formulate the rules of legislative technique (clause 2, article 14), but it turned out to be less successful. These rules (the correct choice of the form of the act; its logical structure; the strict use of legal concepts and terms; the presence of mandatory details of the act) are excessively abstract and declarative. They can hardly by themselves provide significant assistance in drafting the texts of specific regulatory legal acts, but they can serve as the basis for more specific regulation in the field of lawmaking in this subject.

In the Republic of Sakha (Yakutia) there is the Law "On the normative legal acts of the Republic of Sakha (Yakutia)", which contains a list of forms in which legislative acts can be adopted in this republic, and fixes the possibility of establishing the rules of legislative technique by subordinate regional acts.

In Moscow, as a constituent entity of the federation, the regulation of issues related to the technique of lawmaking is carried out on the basis of the Methodological Rules for the preparation of draft laws of the city of Moscow, approved by Decree of the Mayor of Moscow dated February 13, 2006 No. 11-UM, which replaced the previous similar rules, approved by the Order of the Mayor of Moscow dated August 11, 2003 No. 305-RM. It is impossible not to admit that although this document does not have the status of a law, it quite successfully regulates the technical side of the process of drafting bills in Moscow. It contains comprehensive requirements for the language in which these draft laws are presented, for the design of references, for the structure of the draft law, for its design, regulates the procedure for amending Moscow legislation (especially dwelling on such an interesting and technically important technique as the presentation of an act in a new edition), as well as some other issues. In many respects, this act is noticeably ahead of federal legislation in terms of the effectiveness of legal regulation. At the moment, a draft law of the city of Moscow is being developed, which should replace the indicated methodological rules. Such a step seems to be justified, since the drafting and legislative activities are very important and certainly deserve to be regulated by law.

It seems that the legislation of each constituent entity of the Russian Federation should contain a set of rules and principles of legislative technique emanating from the legislator, but based on a single federal regulatory legal act, which would make it possible to unify the legislative regulation of this issue both at the federal and regional levels. Therefore, it is impossible not to welcome the attempts to develop a draft model law “On the regulatory legal acts of the constituent entity of the Russian Federation”, as well as the recent development of a unified methodology for formalizing regulatory legal acts of the constituent entities of the Russian Federation carried out by specialists in this field. We would like to hope that the efforts being made in this direction will culminate in the preparation of a sound text of a model law "On Normative Legal Acts of a Subject of the Russian Federation", which would acquire the force of an official document. The adoption of such an act would undoubtedly make it possible to unify the work of regional lawmakers and help overcome the contradictions that currently exist between the legal systems of different subjects of the Russian Federation.

Without any doubt, the process of creating, changing and improving legislation is the most important area of legal regulation. As the results of the study conducted in this article show, in Russia there is still no proper regulatory framework that ensures the preparation of texts of laws and other regulatory legal acts. Meanwhile, in the absence of official consolidation of a formally defined set of rules for the implementation of lawmaking, it is impossible to achieve a high technical level of issued acts. Therefore, there is a need to develop and officially recognize such a code. The creation of a unified system of normative and legal acts regulating this issue is currently one of the most important tasks of domestic legal reform. However, this will require considerable efforts on the part of legal scholars and legal practitioners.

2.5. Correlation between the concepts of "legislative technique" and "legal technique".

Legislative technique is far from being the only methodology related to the functioning of the mechanism of legal regulation. In this regard, it seems necessary to consider the question of the relationship between the studied legislative technique and the concept of “legal technique” that is often encountered in modern legal science. For in domestic legal science this concept is very popular and is used very often. Even 100 years ago, R. Yering's book "Legal Technique" was published in Russia, which became the basis for many domestic researchers in this field.

First of all, it should be noted that at the moment there is no single point of view among Russian legal scholars as to what legal technique is. Based on this, it is necessary to study (at least briefly) the main scientific concepts that give legal technology and explore its essence.

1. The most common among Russian (as well as foreign) scientists is the point of view most accurately formulated by S. S. Alekseev, who defined legal technique as “... a set of means and techniques used in accordance with the rules in the development and systematization of legal (normative ) acts". In other words, in accordance with this understanding, with which the eminent Russian jurist agreed, legal technique is understood as legislative technique, such an understanding of legal technique is completely identical to the methodology explored in this manual. It should be noted that it is this point of view that is most widespread both among domestic scientists and among legal practitioners. Suffice it to say that in many Russian higher educational institutions, as part of the training of jurists, it is the legislative technique that is studied as a legal technique (for which this manual seems to be quite suitable).

However, due to the fact that there are supporters of a different, broader understanding of legal technique, it is still inappropriate to completely identify it with legislative technique - in order to avoid confusion.

2. Another point of view is, in accordance with the definition given by another domestic scientist - jurist A.F. Cherdantsev, understanding under the legal technique "... set of rules, techniques and methods of preparation, drafting, execution of legal documents, their systematization and accounting. That is, here we have a somewhat broader understanding of legal technique, since “legal documents” in this case means not only regulatory legal acts, but also law enforcement acts issued by competent state bodies, as well as, possibly, documents created private entities in the framework of the implementation of the law (contracts, business letters, etc.). In other words, legal technique as a methodology, in accordance with this concept, is primarily associated with the textual expression of both objective and subjective rights and obligations. Supporters of this point of view link together all forms of objective legal activity: external expression and formal consolidation of the rules of law, as well as the facts of law enforcement and law enforcement.

With this understanding of legal technique, the legislative technique studied in this manual does not include all the components of this concept. However, nevertheless, in this case, the legislative technique forms the basis of the legal technique of such an understanding, because the methodology for creating and systematizing normative legal acts and the methodology for creating other documents expressing and fixing the course of legal regulation are, in principle, similar, one might say - identical. The study of legislative technique, especially its components such as the logic, style and language of the law, in fact, provides almost everything necessary for the drafting of legal documents. The same can be said about the method of systematization (however, the main goal of systematization of law enforcement and law enforcement acts is, rather, analysis and generalization, rather than increasing functionality). Thus, the methodology for creating and improving the system of normative legal acts is the basic part of the legal technique in this sense.

3. But the most interesting and important for legal science is the theory of a broad understanding of legal technique, which has found the most complete and detailed reflection in the works of T. V. Kashanina. According to this concept, legal technique is a set of techniques and methods of conducting legal work» . In this concept, supporters of the concept under consideration, in addition to methods and methods of creating, improving and systematizing, include the so-called interpretive technique (methodology for interpreting regulatory legal acts), law enforcement technique (a system of techniques and methods for implementing the prescriptions contained in the rules of law, for example, the conclusion of various contracts ), as well as the technique of law enforcement (issuance by the judiciary and executive authorities of law enforcement acts imposing, in accordance with the law and in pursuance of the law, specific subjective rights and obligations on strictly defined subjects of legal relations). This is a very wide list of methodologies that are very diverse and united only by the purpose of use, which is to ensure the effectiveness of the legal impact on the behavior of participants in legal relations. Legal technique in this sense acts, in fact, as the basis of the functional part of the legal system of the state. This methodology combines both techniques and methods of external expression and formal consolidation of elements of the rule of law, as well as their implementation. And its study aims, first of all, to create a unified and holistic view of the system of legal regulation and the interaction of its individual elements among students.

Legislative technique in this methodological system plays a leading role. In fact, both the interpretational methodology and the methodology of law enforcement and law enforcement can be considered as auxiliary elements; it is the legislative technique that plays the most prominent role in ensuring the effectiveness of the mechanism of legal regulation of people's behavior. Accurate, complete and systematic reflection in the text of normative legal acts of the meaning of the normative expression of the objective social necessity underlying the law is a primary condition for the effective achievement of the goals of legal regulation. The rest of the above mentioned systems of methods and methods of ensuring the work of the apparatus of legal regulation, which are part of the legal technique in this sense, play a secondary role in this, being largely derived from the legislative technique (for example, the methodology for compiling the text of the relevant law enforcement and law enforcement documents, their systematization and accounting).

It should be noted that this understanding of legal technique is too broad, includes very heterogeneous components, and, in this regard, its unified study (for example, by students studying law) is extremely difficult and hardly possible. The study within the framework of a single course of all the methodologies included in the structure of legal technique with such a broad understanding of it will be associated with the need to correlate very different techniques and methods, it will not be possible to establish a logical connection between them. Assimilation of the essence of such a legal institution (of course, very important both from a scientific-theoretical and practical point of view) is available to a person who has a comprehensive understanding of the legal system as a whole. Legal technique in the broadest sense of this concept is of scientific and practical interest, perhaps, for the scientists themselves, as well as, perhaps, for the most gifted and interested in theoretical and legal problems of students - for research using the system-structural method of cognition.

For the majority of students, however, a separate study of the methodology for creating and improving the system of normative legal acts seems to be really necessary. The remaining elements of legal technique can be studied within the framework of a theoretical and legal special course, as well as within the framework of the study of some branch legal disciplines (for example, in the course of studying the procedural branches of law or administrative law) and in the course of practice. It is the study of the technique of lawmaking, in fact, that will provide an opportunity to learn all the other methodologies that are elements of legal technique (in the broadest sense). If, however, the whole complex of techniques and methods of legal influence on the activities of participants in legal relations becomes the subject of study (which, for the reasons indicated, is undesirable), it is first of all necessary to study the technology of lawmaking.

All of the above gives grounds for the conclusion that the study of legal technique and the study of legislative technique (regardless of the understanding of the essence of this term) are inextricably linked (and we can say that they coincide in some sense). Legislative technique can be considered either as an analogue of legal technique, or as the most important, fundamental part of this legal institution. And in any case, the study of legal technique presupposes the need to first purposefully study precisely the legislative technique.

CONTROL QUESTIONS:

1. What is legislative technique as a methodology? What place does it occupy in the mechanism of legal regulation?

2. What is legislative technique as a science? What is its place in the system of legal sciences?

3. What can you say about foreign and domestic schools of legislative

To clarify the essence of legislative technique, the problem of the place of the phenomenon under study in the system of legal knowledge must first be solved, i.e.

E. the question of whether it belongs to a practical or theoretical field. There is no single approach to this problem either among domestic or foreign researchers. The range of opinions is extremely wide. This is probably due to the fact that legislative technique as a legal phenomenon of a special nature cannot be reduced to exclusively practical activities in the preparation of draft legal acts, nor to purely theoretical issues. Legislative technique is the unity of both elements, that is, the unity of scientific and practical (actually technical) knowledge.

Technique as a phenomenon of social life is understood in philosophy as the result of the interaction of three elements: the totality of scientific and technical knowledge that provides technical activity; sets of technical devices; a combination of various types of technical activities for the creation of these devices (manufacturing, design, scientific and technical research).

In any technology, there is a clear progress from scientific knowledge through technical activity with the help of technical devices to the final result - the product. Technology is not a science in itself, it cannot exist in isolation from science, it interacts with science, and the result of such interaction is specific scientific and technical knowledge.

The applicability of this methodological scheme (Knowledge + Activity + Devices) to the legislative technique can be seen from the following.

Most researchers of legislative technique single out such elements as methods, rules, techniques and means in its structure.

The method is the way theoretical research or the practical implementation of something. Legislative technique methods are ways to achieve the goal of streamlining legal material.

Legislative technique uses general methods used by all sciences, and private methods used only by individual sciences.

The general scientific methods of legislative technique include analysis (the process of mental decomposition of the whole into its component parts) and synthesis (the process of mental creation of the whole from parts). The same category of methods includes historical (the study of law-making processes in the dynamics of their historical development) and logical (the use in the course of the study of the law-making process and the methods and techniques of formal logic used by its participants) methods. In addition, among the general scientific methods actively used by legislative techniques, one can single out the methods of inductive generalization (the method of obtaining general knowledge about a class of objects based on the study of individual representatives of this class) and deductive analysis (a form of inference from the general to the particular and the singular, characterized by the fact that new knowledge about an object or a group of homogeneous objects is derived on the basis of knowledge of the class to which the objects under study belong, or on the basis of a general rule that operates within a given class of objects).

The private scientific methods used by legislative technique include: system-structural, functional, formal-legal, comparative methods, as well as the method of scientific modeling.

The system-structural method involves the study of the subject, based on the assumption of its system-structural unity, the close mutually determining connection of the main components of this subject, and also that the subject of study is an element of a larger system, and the structural elements of the subject themselves are systems. The functional method means the study of any subject from the point of view of its purpose, its role and functions. The formal legal method allows you to study the subject from the point of view of its functioning (for example, the study of regulatory legal acts that regulate the legislative process). The comparative method involves the comparison of certain elements of the subject under study and other phenomena of the surrounding world. The method of scientific modeling means the creation by the researcher of a mental ideal image of the object under study and the study of its properties, as well as the possibility of its functioning and changes.

The named general and particular scientific methods of studying legislative technique are applied in a complex manner, in close interconnection with each other. The system of these methods largely predetermines the close relationship between legislative technique and related legal sciences, such as the theory of state and law, constitutional law, philosophy of law, etc.

It is obvious that the methods of legislative technique make it possible to obtain and accumulate new knowledge necessary for solving the set tasks. This knowledge, as a kind of standard for the activities of a law-making body, is embodied in the rules of legislative technique, expressed in the form of specific requirements for the actions of subjects of the law-making process to develop and optimize the form of a legal act.

In this case, the form of a legal act is understood not as its appearance, but as a set of linguistic and logical means of expressing and structuring the norms and the entire document as a whole, i.e., not an external, but an internal form.

The most common rules of law are:

1) linguistic, which determine the procedure for using linguistic means in the design of a legal act;

2) logical, ensuring compliance with the rules of formal logic in the text of a legal act;

3) epistemological, aimed at adequate reflection in the text of a legal act of the phenomena of objective reality;

Techniques (methods) of legislative technique should be attributed to the level of technical activity, i.e. to the technological link, when scientific and technical knowledge begins to be applied to an object, i.e., a certain kind of activity arises. Accordingly, the reception (method) of legislative technique can be defined as the action of an authorized subject to implement a legal and technical rule (operation). Integrated into a single whole, related methods form one or another method of action of the subject of legal practice.

The means of legislative technique should be regarded as technical devices, a kind of aggregates, parts, thanks to which the final product is created - the text of a normative legal act. Legislative techniques are extremely diverse:

1) formal attributive (details of the document);

2) logical (the structure of the document as a whole, the internal structure of the norms);

3) general social or linguistic (the whole complex of expressive means of a given language, including concepts, judgments, speech clichés, metaphors, language symbols, various social norms, etc.);

4) special legal (legal concepts and terms, constructions, presumptions, fictions, references, references, notes, etc.);

5) technical (copying equipment, computers, office equipment).

The elements of legislative technique (methods, rules, techniques, means) are hierarchical, and the fairly common practice of listing them as synonyms is incorrect. Indeed, everything newly learned using the methodological base of legislative technique directly affects the content of its rules. Compliance with the rules of legislative technique is achieved through the correct use of its techniques. Finally, the use of legislative technique is nothing more than the choice of the totality of its means necessary to solve a given law-making task. Thus, legislative technique is a scientific and technical field of legal knowledge.

The next important step towards revealing the essence of legislative technique is the correct establishment of its object and subject.

The object of legislative technique is the object of knowledge (public relations subject to legal regulation) and the object of practical transformation (information obtained as a result of cognitive procedures and directly related to the subject of regulation of the proposed legal act).

The subject of legislative technique is the text of a normative legal act (draft), in relation to which the legislator makes intellectual efforts.

The purpose of legislative technique is to rationalize legal activity, achieve clarity, accuracy, simplicity, brevity, a certain standardization, uniformity (unification) of legal documents, and more generally, the availability of the text of legal norms in terms of their meaning.

The main task of the legislative technique is to ensure an unambiguous and adequate literal interpretation (and therefore successful implementation) of the newly created legal act as a whole. Without solving this problem, it is impossible to say that the goal of translating the will into a document has been achieved, since the law-making body cannot consciously strive for the impossibility of a literal interpretation of its will.

Having considered the elements, object, subject, purpose and tasks of legislative technique, we can formulate an understanding of its essence.

The essence of legislative technique consists in the cognitive and transformative activity of the subject of lawmaking, which has the form (text) of a legal act as its subject.

As noted above, there is no common understanding of the content of the concept of "legislative technique" in the scientific doctrine.

Thus, Professor Yu. A. Tikhomirov defines legislative technique as "a system of rules intended and used for the cognitive-logical and normative-structural formation of legal material and the preparation of the text of the law" .

The collective monograph “Law-making activity of the constituent entities of the Russian Federation: theory, practice, methodology” gives the following definition: “legislative (law-making) technique is a set of methods, skills used in the preparation, presentation, execution and publication of normative legal acts (documents)” .

At the present stage of development of legal science, the most common point of view is that legislative technique is considered as a set of methods, rules, techniques and means of developing, formalizing, systematizing, interpreting and applying the most advanced in form and content of normative legal acts.

In the legal literature, there is a debate about whether the legislative technique is only applied in nature or whether it is a more complex phenomenon that combines instrumental and fundamental approaches.

It seems that the legislative technique is mainly applied, instrumental in nature. But this does not mean at all that she is “second-rate”, subordination, lack of independence. Being an applied scientific, instrumental branch of knowledge, it uses the achievements of not only jurisprudence, but also other sciences - logic, document science, linguistics, etc. and, of course, a large number of its own methods and means developed by practice, with the help of which goals of legal regulation are achieved. These rules, techniques and means ensure the most accurate correspondence of legal acts to their essence and content.

Control questions and tasks

1. What stages can be distinguished in the history of the development of law?

2. When did scientific views on legislative technique arise and how did they develop?

3. Name the main stages in the development of domestic legislative technology.

4. What is the essence of legislative technique?

5. Expand the concept of "legislative technique".

6. How do the concepts of “law-making technique”, “legal technique”, “legislative technique” correlate?