Sources of Law Formation: Particular Methodological Aspects

Abstract

The article analyzes some methodological aspects of the law formation sources. In the juridical literature, natural law refers to the ideological or ideal sources of law. The idea of law always precedes law, as first comes an idea of the proper law, which should be enshrined at the state level, and only then a real legal system is created. Although the idea of law has a potential reality only, it is so essential that it gives normative force to positive law. Such concepts as «human dignity», «freedom», «equality», «justice» are perceived today not only as the principles of law, but also as its basic ideas, since law is not only a legal mechanism, but also a set of legal ideas, including the ideas and ideals formed on their basis as the concepts of perfection of legal phenomena. Positive law, which implies the unity of rights and obligations, as well as the unity of coercion and incentives, also requires ideological content reflecting the influence of philosophical and law concepts. The importance of the philosophical concept of the obligatory is in the modelling of the ideal law, and the legal prohibitions and obligations that correspond to human nature. Although there are fair reservations that law has always been and still is represented in the form of strict coercive regulations, violation of which is punishable by the state (positive law). However, the sources of the positive law development are the changes in the ideological content of law that is in the idea of what the law should be. If we consider law as a reality that combines, rather than opposes the natural-legal and positive-legal dimension, i.e. the ideal and the real, we can reasonably agree that such a combination takes place in the field of communication. While the law being a communicative interaction of the ideal and the real can be considered as an aspect of the proper, which is manifested in values, principles, and standards. Many objective and subjective factors are involved in the process of law formation, as law by its nature is integrative and reflects the principles of all social relations regulated by it. Anthropological and social factors influencing the consciousness of people involved in social relations play a decisive role in the formation of law. This makes it possible to approach the sources of law formation as anthropic and social factors that influence the creation and development of law.