Методологические проблемы цивилистических исследований. Сборник научных статей. Ежегодник. Выпуск 2. 2017
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The methodology of the science is traditionally understood as a complex of the scientific cognition methods. Nevertheless, as known, the entire is always bigger than a simple set of the components: a kit for making a plane – is not yet a plane itself.
The cognition methods separately are a specific part of the civil methodology, and the researcher should be familiar with each of them.
To begin with, the the excellence of a legal theorist is defined by his understanding of the special, specific (general legal) methods of cognition and his ability to use them. For example, the usage of the historical legal method – is not the interpretation of the contents of the normative acts, that regulated in the past the researched phenomenon, and not the retrospective of the scientists’ opinions about it. Similarly, the use of the comparative legal method is not the re-writing the articles, covering the researched phenomenon, from the legislations of the foreign countries. Such application of the mentioned research method is very often met in the civil scientific works.
It is a pity that the civil scientists seldom use the methods of the nonjuridical sciences (economy, sociology, cultural studies, psychology, mathematics), which significantly enlarge the opportunities of the research. An especially promising and in some researches – a necessary method is the economic analysis and the sociological analysis of the civil law concerning how the civil legal phenomenon under study influences the economics and the society and vice versa. For example, if the recently implemented institution of the personal bankruptcy is needed in the specific economic relations, if it has led to the expected economical result, i.e. the significant reduction of debt to the creditors? Using the sociological methods, one can discover how the addressees of this institution treat it: if the risk of bankruptcy is a real factor inducing to pay the debt, or if it, on the contrary, is a happy opportunity to get rid of the creditors’ claims? In the latter case, the eficiency of the civil legal regulation of the personal bankruptcy will be extremely low, in the worst case scenario – the regulation will be not needed, and this cannot be ignored by the researcher.
It is quite often that the civil works include the innovative proposals that require considerable financial resources which are totally not taken into attention by the researchers. For example, the thesis researches propose to develop the mechanisms of compensating the civil damage for the deceived participants of the co-funded construction project, for the crime victims and the victims of other offences, for consumers, for the investors of the bankrupt financial organizations, for the authors of illegally used creative works, and other persons at the expense of the national budget. The economic analysis 22 of such statements about the novelty of the research is a mandatory condition for their verification.
22
Habrieva T.Y. Economic Legal Analysis: the Methodological Approach // Magazine of the Russian Law. 2010. # 12. P. 5–26.
In some of the civil researches it will be relevant to use the methodological toolbox of the cultural and psychological sciences allowing to account for the corresponding special features of the society. For example, when using exceptionally the legal methodology, the juridical construction of the relations between the borrower and the microfinance organizations look practically “trouble-free”: the organization gives the citizen a definite amount of money for his immediate needs, although at high interest rates but with no deposit. The problems of this construction are revealed when this construction is transferred to the society with the known cultural and psychological features. The borrowers are usually people not only with low income but also having low general and legal culture, with low capacity for the legal reflection and self-regulation. They inadequately evaluate their possibilities, with all the resulting civil consequences and, it is a pity, with harsh criminal consequences. The ignoring of this factors devaluates the civil legal construction of “microloans” and leads to the justified blaming the lawyers for their failure to “study the life of the society and the state, the functioning of the law within the framework of their actual purpose in the life of people and the society” 23 .
23
Nepreenko A.A. Meaning and Form of Teaching the Jurisprudence Methodology // State and Law: Issues of Methodology, Theory and the Practice of Functioning: Collection of Scientific Articles / Ed. by A.A. Nepreenko. Samara: Samara University Publishing House, 2006. Issue 2. P. 9.
Surely, none of the scientific researches can be made with no general scientific methods of cognition (analysis, synthesis, deduction, induction comparison, analogy etc.). Although, in opinion of B.I. Puginskiy, the mentioned means “are not the methods of getting the scientific knowledge but are the general logical rules of performing the intellectual operations” 24 , their research potential should not be underestimated. These means provide for a formal rightness of the statements, but not always for their verity of course.
24
Puginskiy B.I. Methodological Aspects of Jurisprudence // Jurisprudence. 2010. # 1. P. 9.
In general, the relevant and effective application of the scientific cognition methods supposes the deep understanding of their nature, purpose, functions, rules and cases of use by the researcher.
In our opinion, the authors of the civil works, especially the authors of the theses, should describe the chosen methodology of the research at the level of the paragraph, chapter, section. The standard list of the research methods being repeated in every thesis, is not suficient for explaining the chosen methodology and the methods of cognition. It is necessary to describe distinctly and in detail, what method was used, the reason and the purpose for choosing it to get a definite scientific result.
However, the methodology of the science, including the civil science, has a common part, because the methodology as a specific organization of the scientific activity is in charge not only for the use of the necessary means and procedures of the scientific cognition but also for the correct definition of the object and the subject of the research, for its tasks and phases, for its results (scientific novelty) 25 .
The common part of the civil methodology also includes the question of the correspondence between the “theory of law” and the “civil law” sciences, resulting from the general question of correspondence between the science theory and methodology. The scientific theory performs all the methodological functions in all the sciences 26 . The general theory, by forming “ the systematic methodology mindset for the forthcoming juridical researches” 27 , performs this function for the civil science. This means that the theory of law shows the way of gaining an insight into the civil phenomenon. The notions uncovered by the theory of law, should get the further concreteness in sectoral sciences through revealing their sectoral features. And, vice versa, the research of the specific civil phenomenon should be held with a wide use of the legal phenomena cognition theoretical tools developed by the juridical science: “The level of the theory of law as the methodology is a fundamental science about the law where the key law concepts and principles are being developed to be used by specific juridical sciences” 28 . This provides for a well-known conceptual and category harmony of the legal science as a whole.
25
Lazarev V.V., Lipen S.V. History and Methodology of the Juridical Science. M.: Norma; INFRA-M, 2016. P. 166.
26
Yudin E.G. Methodology of Science. Systemacity. Activity. M.: Lenand, 2016. P. 69.
27
Lazarev V.V., Lipen S.V. Op. cit. P. 175. See also Baytin M.I. About the Methodological Importance and the Subject of the General Theory of the State and the Law // State and Law. 2007. # 4. P. 5–9.
28
Kozhevnikov V.V. Methodology and the History of Law: Textbook: in two volumes. Omsk: Omsk University Publishing House, 2008. Part 1. P. 21.
Nevertheless, in modern civil researches we often see an extremely disrespectful attitude towards the existing theoretical legal results. The results of the civil researches, for example about the civil legal relations, about the civil legal juridical facts, about the civil legal liability, civil legal protection of the rights, civil rights and duties, are so “unique” and far from the theoretical legal concepts of these legal phenomena, that they cause only reasonable negative reaction of the legal theorists – from the deep bewilderment to the explainable indignation. Such a situation is a result either of the misunderstanding of the meaning of the theory of law for the sectoral sciences or of the general lack of knowledge on the contents, the structure and the essence of the scientific methodology itself.
Besides, it is important to differentiate between the fundamental and the applied civil researches. Introducing changes into the existing legislation and improving the court practice cannot be the purposes of the fundamental researches, although as a result the latter gain an implied practical meaning.
However, the question of the philosophical part of the civil methodology is deemed to be most complicated. The chosen methods of research and the results of the research to a large extent depend on the scientist’s world view and his law understanding.
For example, the normativism suggests the exceptional study of the civil legal norms that regulate the legal phenomenon. Despite the fact that the civil theses defendants very seldom indicate the normativism as the methodological basis of the work, it is more often that it is the basis of the work. Indicating the dialectics as the fundamental of such a research means that both the normativism and the dialectics are misunderstood, because the principal technique of the latter is not “applicable for studying the the aggregate of the legal norms” 29 . Besides, the normative approach does not suggest the usage of the inter-disciplinary methodology, because it studies the static legal norms with no account for their real contents, and economic, social, cultural, psychological and any other extralegal dependence. In this case, the civil legal norms regulating the object in question, are accepted with no explanations, as a dogma. The dogmatic methodology of researching the civil legal problems defines the choice of the definite set of the cognition methods 30 , which will differ from the methods of, for example, comparative legal of social legal research.
29
Puginskiy B.I. Op. cit. P. 9.
30
See about them, for example, Syrykh V.M. History and Methodology of the Juridical Science: Textbook. M.: Norma; INFRA-M, 2013. P. 327–335.