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Legal Studies
Reference:

The search for new methodological approaches in legal research in the context of modern challenges

Bleshchik Aleksandr Vladimirovich

ORCID: 0000-0001-9166-4432

Associate professor of the Department of Constitutional Law of the Ural State Law University named after V.F. Yakovlev

620137, Russia, Sverdlovsk region, Yekaterinburg, Komsomolskaya str., 21

bleszczyk@yandex.ru

DOI:

10.25136/2409-7136.2023.12.69397

EDN:

FNAFRU

Received:

17-12-2023


Published:

24-12-2023


Abstract: The subject of this article is theoretical concepts and explanatory models used in legal science to identify the essence of law and legal phenomena, as well as issues of the evolution of methodological knowledge in jurisprudence in modern conditions. Due to the lack of adequate tools in classical jurisprudence for describing and researching the nature of new phenomena of legal reality, as well as in connection with overcoming politically and socially determined methodological limitations, legal science is faced with the need to search and disseminate new methodological approaches. New methodological approaches in the social sciences in general and in jurisprudence in particular do not pretend to establish the absolute truth, their advantage lies in the integration of traditional approaches.When considering the problems of the methodology of modern legal research, the author points out the need to apply new postclassical approaches, including the communicative theory of law. The novelty of the research consists in substantiating the impossibility of the transition of legal science to a qualitatively new level of knowledge of law and legal phenomena, provided that it uses the classical (and to a certain extent outdated) methodological optics. Since legal science develops in the context of the development of scientific knowledge in general and goes through the same stages in its development, at the present stage its development may be associated with the application of integrative concepts of legal understanding. One of the most interesting integrative concepts of legal understanding is the communicative approach, which allows us to give a more complete picture of the law, of all legal institutions, as it introduces legal dogmatics into the context of social communication. The communicative approach offers legal science new tools for understanding law and legal phenomena in their social dimension, which is the basis for using it as a methodological basis for current research in the field of lawmaking and law enforcement.


Keywords:

jurisprudence, approaches to legal understanding, methodology of science, criteria of scientific rationality, positivism, normativism, global challenges, integrative legal understanding, the communicative concept of law, social communication

This article is automatically translated. You can find original text of the article here.

The research was carried out with the financial support of the V.F. Yakovlev State University of Economics in the framework of the project of the scientific group No. 0202/23 "Transformation of constitutional and legal institutions in the context of the development of digital technologies and the challenges of globalization"

The methodology of science as institutionalized knowledge is the result of scientific self-reflection. Each new stage in the progressive development of science is marked by a further increase in the importance of the methodological order [1, p. 60]. Legal science is no exception. One can repeatedly question the scientific nature of jurisprudence, deny it the right to be called science[1], but it must be recognized that in its development legal knowledge, legal science go through exactly the same stages as natural science science in the traditional sense of the word. In jurisprudence, as in natural science fields of knowledge, scientific worldviews are also changing, and the same criteria of scientific rationality are applied to legal knowledge.

What are the reasons for this? Why does legal science feel the impact of these seemingly subjective processes, which, it would seem, cannot proceed synchronously in all areas of scientific knowledge? Firstly, of course, integration of knowledge and transdisciplinarity of scientific interaction play a significant role in the involvement of all branches of science in the processes of scientific evolution. Gunther Ropol considers transdisciplinarity as a prototype of a new paradigm of the organization of science in a broad sense, with its inherent new flexibility, diversity, reflexivity and replacing its disciplinary organization [cit. po 3, p. 25].

In addition, the erasure of interdisciplinary boundaries intensifies a constant interdisciplinary dialogue with the penetration of concepts of natural science knowledge into the field of humanities and vice versa. "Transdisciplinary interaction is, first of all, a transfer of knowledge of a methodological type. It means that knowledge is included in disciplinary contexts, which opens up opportunities for a special formulation and vision of research problems and the application of appropriate ways to solve them" [cit. po 3, p. 24].

The theoretical levels of individual sciences converge in the general theoretical, philosophical explanation of open principles and laws, in the formation of ideological and methodological aspects of scientific knowledge in general [4, p. 227]. This implies a new role for philosophy as an integrative knowledge, as a "sum of sciences", as a reservoir of ideas, meanings accessible to all branches of science, or, if we speak about it in the spirit of J. Deleuze and F. Guattari, concepts [5, p. 135], which, although generated by philosophy, but methodologically and substantively serve science[2].

The locomotive of scientific knowledge is traditionally considered to be the natural sciences. The change in the nature of scientific reflection in these branches of scientific knowledge determines the patterns of development of scientific knowledge in general: "in the history of European scientific thought, with individual variations, it is customary to distinguish between classical and non-classical science (classical and non-classical (postclassical) the type (stage) of scientific rationality, the formation and change of which are associated primarily with fundamental changes in the philosophical and methodological foundations of scientific research and are considered as scientific revolutions, mainly in natural science" [6, p. 264].

The classical type of scientific rationality is based on the belief in the existence of reality in itself, which as such should be understood outside the context of human attitude to it [cit. po 7, p. 63]. In turn, the non-classical type of scientific rationality already implies the correlation of scientific knowledge with the cognitive actions of the subject, taking into account the influence of forms and means of cognitive activity on the content of scientific knowledge obtained.

Let's talk about the accumulation of contradictions (or "anomalies", in the language of T. Kuhn [8]) in legal science, which become real challenges for jurisprudence and actualize its transition to a new type of scientific rationality. T.Ya. Khabrieva, in particular, argues that new structures appear in the system of national law, "which cannot They can be identified in the previous categorical matrix and attributed to the number of well-known elements of the legal system (branches, sub-sectors, institutions), and the "traditional" approach to categorizing legal arrays does not allow to reveal the nature of the phenomenon under consideration and adequately reflect its place in the legal system" [9, p. 8]. The social dimension of the same problem is revealed by N.V. Isaeva, noting the inability of legal science to explain various social phenomena of our time, including the decline in the authority of law in society: "many legal phenomena and processes cannot be explained in the classical paradigm: it becomes difficult to explain why, despite the expansion of the catalog of rights and freedoms, there is the loss of the appeal of law, manifestations of legal nihilism are growing, the number of offenses in various fields is increasing; promotion to success outside the law, by illegal means is encouraged" [10, p. 5].

However, conservatism is characteristic of science and even more so of education. Moreover, such healthy conservatism is an essential condition for the institutional stability of scientific knowledge, a property that protects science from the effects of accidental influences. The situation is somewhat different with conservatism, which exists due to social and political factors. In particular, we are talking about the politically mediated dominance of a single methodological approach in science. In such conditions, domestic jurisprudence (and not only jurisprudence, but also other social and humanitarian sciences in general) turned out to be in Soviet times, when dialectical materialism became the only possible (acceptable from the point of view of the state) methodological approach to legal research.

Overcoming the dominance of statistic (positivist and normativist) or other approaches to legal understanding does not mean a complete rejection of the scientific and practical achievements of the legal thought of the past. As N.N. Tarasov notes, there are peculiar "overlaps" between the stages of the development of science, and the appearance of each new type of rationality did not discard the previous one, but only limited its scope, determining its applicability only to certain types of problems and tasks" [6, p. 64]. We have already said in this regard that monistic concepts of legal understanding, although they lose the ability to scientifically explain the totality of legal phenomena arising in social life, still remain relevant.

It seems that an integrative approach can contribute to the active development of legal knowledge in the current conditions. In this sense, G. J. Berman described the transition to the "new jurisprudence" very accurately: "We need to overcome ... the misconception about exclusively political and analytical jurisprudence ("positivism"), or exclusively philosophical and moral jurisprudence ("theory of natural law"), or exclusively historical and socio-economic jurisprudence ("historical school", "social theory of law"). We need a jurisprudence that integrates all three traditional schools and goes beyond them" [11, pp. 16-17].

But the transition to an integrative type of legal understanding is due not only (and not so much) to the search for methodological pluralism (otherwise it would be a local, national phenomenon peculiar only to those societies (and scientific communities) that in the relatively recent past freed themselves from authoritarian political regimes), but rather to a change in the scientific picture of the world.

The "positive program" of the post-classical ontology of law consists in the fact that it sets a new idea of law, significantly different from the "classical" one. Naive objectivism, which reifies legal existence, is replaced by intersubjectivism; the subjectivity of legal normativism is transformed into humanocentrism; contextualism, historical and socio-cultural conditionality of law are replacing universalism; the constructability of legal reality as a mechanism of its reproduction, setting a practical dimension, including procedural, replace the static nature of law ...; all these modes of being law have an internal basis legal communication" [12, pp. 17-18].

It is these components of the "positive program of the postclassical ontology of law" that allow us to take a fresh look at the development of law, its evolution in the face of new global challenges of our time, to see in law not only a system of generally binding rules, but also a cultural phenomenon and a form of communication between people.

In connection with the ideas expressed above, it is worth describing in more detail the basic provisions of the communicative concept of law, which is one of the integrative approaches to legal understanding actively used today in science. This approach is based on two (inherently poststructuralist) postulates of modern philosophy: "everything is text" (J. Derrida, Y. Lotman) and "everything is communication" (N. Luhmann). One of the outstanding Russian legal theorists, the developer of the communicative theory of law, A.V. Polyakov, in turn, considers communication as an integral component of the social. "The very formation of man," he writes, "was made possible by the emergence of the ability to communicate How communication can be considered not only law, but also morality, morality, religion, science, etc. That is why the communicative aspects of social existence are given primary attention in linguistics, semiosociopsychology, cultural studies, philosophy" [13, p. 4].

If communication is understood as communication, the exchange of thoughts, information, ideas, etc.; the transfer of one or another content from one consciousness (collective or individual) to another through signs fixed on material media [14], then it must be recognized that the means of communication is text, that is, "a system of communicative and cognitive elements, functionally united, i.e. for a given specific purpose(s) of communication, united into a single closed, hierarchically organized, meaningful and semantic structure by a common concept or idea (communicative intention) of communication" [7, p. 53].

If we are talking about legal communication (law as communication), then the text in question, of course, cannot be reduced in a narrowly positivist sense to the texts of legal acts. Here, the text includes legal acts, actions of participants in legal relations, statements about law, and legal awareness everything that arises in the intersubjective space and mediates legal communication. However, consideration of the nature and features of the legal text and legal signs is not in the focus of our attention we will shift the focus from the technical aspects of communication to the ontological ones in order to understand for ourselves the importance of this phenomenon for the study of social interactions.

According to A.V. Polyakov, "in a broad philosophical sense, communication is a way of human existence in the world. A person is oriented by his whole nature towards the "Other" and through this "Other", in communicative interaction with him, finds his human essence" [15, p. 8]. This is primarily due to the fact that the root cause of social dynamics is the need of the subject, which encourages him to enter into relationships with other members of society. Thus, it can be considered that the need determines communication, including legal communication. At the same time, the absolutization of a particular aspect of the existence of law is not peculiar to the communicative concept due to its belonging to postclassical jurisprudence. The communicative interpretation of law, as A.V. Polyakov writes, "forces us to abandon onedimensional definitions such as "law is the norms of the law", or "law is legal relations", or "law is the will of the state / ruling class", etc. and move to legal stereoscopy, when law is considered as a multiunit" [15, p. 10].

Thus, the communicative concept, which focuses not on the statics of law, when the dogma of law breaks away from the demands of legal life, but on its action, social validity [16, p. 80], helps to overcome the crisis of positivist methodological monism and offers legal science new tools for the knowledge of law and legal phenomena in their social dimension, which It is the basis for using the communicative concept of law as a methodological basis for current research in the field of lawmaking and law enforcement.

[1] For example, V.V. Lapaeva states: "the authors who deny the existence of an essential feature of law (i.e., a common distinctive feature inherent in law under any conditions), in fact deny the possibility of scientific knowledge of law and the scientific nature of jurisprudence. Such a point of view is, of course, possible, but it is beyond the scope of science" [2, p. 68].

[2] That is, one cannot simply say that philosophy produces new ideas for science, and science uses them in its activities, develops, complements and specializes. To show the complex connection between science and philosophy in this matter, J. Deleuze and F. Guattari introduces a system of categories, including concepts such as "concepts" and "functions". They write: "A scientific concept is defined not by concepts, but by functions and propositions... the idea of function makes reflection and communication possible for the sciences. In solving these problems, science does not need philosophy at all. But when some object (for example, geometric space) is scientifically constructed by means of functions, then the search for its concept begins" [5, p. 135].

References
1.  Kerimov, D.A. (2011). Methodology of law: Subject, functions, problems of philosophy of law. Moscow: SSU Publishing House.
2. Lapaeva, V.V. (2008). Legal principle of formal equality. Journal of Russian Law, 2, 67–80.
3. Avdonin, V.S. (2014). Methodological integration of science. METHOD: Moscow yearbook of works from social science disciplines, 4, 12–32.
4. Spirkin, A.G. (2009). Philosophy: textbook for technical universities. Moscow: Gardariki.
5. Deleuze, G., Guattari, F. (2009). What is philosophy? Moscow: Academic Project.
6. Tarasov, N.N. (2001). Methodological problems of legal science. Ekaterinburg.
7. Polyakov, A.V. (2021). General theory of law: problems of interpretation in the context of the communicative approach. Moscow: Prospekt.
8. Kuhn, T. (2020). Structure of scientific revolutions. Moscow: Publishing house AST.
9. Khabrieva, T.Ya. (2019). Cyclic normative arrays in law. Journal of Russian Law, 12, 5–18.
10. Isaeva, N.V. (2013). Legal identity (theoretical and legal research). Moscow: Yurlitinform.
11. Berman, H.J. (1998). Law and Revolution: The Formation of the Western Legal Tradition. Moscow: Moscow State University Publishing House: Publishing Group. INFRA-M-NORMA.
12. Chestnov, I.L. (Ed.). (2016). Postclassical ontology of law. St. Petersburg: Aletheya.
13. Polyakov, A.V. (2002). Communicative concept of law (genesis and theoretical-legal justification). St. Petersburg.
14.   Ilyichev, L. F.,  Fedoseev, P. N.,  Kovalev, S. M.,  Panov, V. G. (1983). Philosophical encyclopedic dictionary. Moscow: Soviet Encyclopedia. Retrieved from https://dic.academic.ru/dic.nsf/enc_philosophy/COMMUNICATION.
15. Polyakov, A.V. (2014). Communicative legal understanding. Polyakov A.V. Selected works. St. Petersburg: Alef-Press.
16. Antonov, M.V., Polyakov, A.V., Chestnov, I.L. (2013). Communicative approach and Russian theory of law. Jurisprudence, 6(311), 78–95.

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The list of publisher reviewers can be found here.

The subject of the research in the article submitted for review is, as its name implies, the problem of finding new methodological approaches in legal research in the context of modern challenges. The stated boundaries of the study are fully respected by the author. The methodology of the research is not disclosed in the text of the article. The relevance of the research topic chosen by the author is undeniable and justified as follows: "The methodology of science as institutionalized knowledge is the result of scientific self-reflection. Each new stage in the progressive development of science is marked by a further increase in the importance of the methodological order [1, p. 60]. Legal science is no exception. One can repeatedly question the scientific nature of jurisprudence, deny it the right to be called science[1], but it must be recognized that in its development legal knowledge, legal science go through exactly the same stages as natural science science in the traditional sense of the word. In jurisprudence, as in natural science fields of knowledge, scientific worldviews are also changing, the same criteria of scientific rationality are applied to legal knowledge." Additionally, the scientist needs to list the names of the leading experts who have been engaged in the study of the problems raised in the article, as well as reveal the degree of their study. The scientific novelty of the work is manifested in a number of conclusions of the author: "First, of course, a significant role in involving all branches of science in the processes of scientific evolution is played by the integration of knowledge and transdisciplinarity of scientific interaction"; "In addition, the erasure of interdisciplinary boundaries intensifies a constant interdisciplinary dialogue with the penetration of concepts of natural science knowledge into the field of humanities and vice versa"; "... monistic concepts of legal understanding, although they lose the ability to scientifically explain the totality of legal phenomena arising in social life, they still remain relevant"; "... the transition to an integrative type of legal understanding is due not only (and not so much) to the search for methodological pluralism (otherwise it would be a local, national phenomenon peculiar only to to those societies (and scientific communities) that in the relatively recent past were freed from authoritarian political regimes), how much is the change in the scientific picture of the world", etc. Thus, the article makes a certain contribution to the development of domestic legal science and, of course, deserves the attention of potential readers. The scientific style of the research is fully sustained by the author. The structure of the work is quite logical. In the introductory part of the article, the scientist substantiates the relevance of his chosen research topic. In the main part of the article, the author, based on the analysis of a number of scientific papers, searches for new methodological approaches in legal research in the context of modern challenges, eventually calling the communicative concept of law the methodological basis of current research in the field of lawmaking and law enforcement. The final part of the work contains conclusions based on the results of the study. The content of the article fully corresponds to its title and does not cause any particular complaints. The bibliography of the study is presented by 16 sources (dissertation, monographs, scientific articles, textbooks). From a formal and factual point of view, this is quite enough. The nature and number of sources used in writing the article allowed the author to reveal the research topic with the necessary depth and completeness. There is an appeal to the opponents, but it is general in nature due to the focus of the study. The scientific discussion is conducted by the author correctly. The provisions of the work are justified to the necessary extent. There are conclusions based on the results of the study ("Thus, the communicative concept, which focuses not on the statics of law, when the dogma of law breaks away from the demands of legal life, but on its action, social validity [16, p. 80], helps to overcome the crisis of positivist methodological monism and offers legal science new tools for the knowledge of law and legal phenomena in their social dimension, which It is the basis for using the communicative concept of law as a methodological basis for current research in the field of lawmaking and law enforcement"), have the properties of reliability and validity and, of course, deserve the attention of the scientific community. The interest of the readership in the article submitted for review can be shown primarily by specialists in the field of theory of state and law, philosophy of law, provided that it is slightly improved: disclosure of the research methodology and additional justification of the relevance of its topic (within the framework of the remark made).