ARE LEGAL AXIOMS A MEANS OF LEGAL TECHNIQUE?

ABSTRACT

The article studies the problems of defining legal axioms as a means of legal technique from different points of view. The understanding of legal technique is considered. The content of legal axioms is defined. Arguments are given as to whether legal axioms are a means of legal technique or not. The problem of stability and variability of legal axioms is raised.

Keywords: legal axiom, legal technique, legal provisions, truth, law, Russian Federation, legal norms, legal science.

The question of the existence of legal axioms as means of legal technique is currently under consideration by many specialists in the field of legal science [1, 2, 3, 4, 5, 6, 7, 8, 9, 10].

Many axioms recognized in modern times in legal systems, including Russian law, originate in Roman law [1]. According to Art. 51 of the Constitution of the Russian Federation “no one is obliged to testify against himself”, and Art. 54 enshrines the axiom that “the law aggravating responsibility does not have retroactive force” [11]. According to Art. 6 of the Criminal Code of the Russian Federation “it is impossible to be tried twice for the same crime” [12].

To consider the question of the existence of legal axioms, as means of legal technique, in more detail, it is necessary to first clarify what is, in fact, legal technique. The definition of the term “legal technique” is basically reduced to the fact that it is a tool of lawmaking, a system of various means, techniques and methods of preparation, streamlining of legal acts, developed in practice, which is used to ensure the improvement of legal (normative) norms and increase their effectiveness [1]. It is also possible to understand legal technique not only as a “servant” of understanding the meaning of legal norms, but also as an art of legal activity, when researches’ definitions influence other researches’ understanding of the concept [2]. It is worth noting that the majority of legal scholars consider legal technique as a tool only for creating legal acts [1, 2, 3, 4, 5, 6,7, 8, 9, 10].

In addition, many legal scholars recognize legal axioms as a means of legal technique, and others, on the contrary, say about the impossibility of normative legal axioms [1, 2, 3, 4, 5, 6, 7, 8, 9, 10].

According to the generalized view of the lawyers who adhere to the concept that a legal axiom is a means of legal technique, legal axioms are historically established legal provisions, which as a result of practice become elementary truths, and without which the existence of law as a whole is impossible [3].

The presented phenomenon is characterized by the following set of attributes: moral foundations; consistency with rational thinking; elementary and universal character; universal recognition; unambiguous interpretation; irrefutable character; historical durability [4].

To address the issue of legal axioms as a means of legal technique, it is worth considering the opinions of experts in the field of jurisprudence on this issue. The research works of E.I. Mishutina, A.A. Ferens-Sorotsky, S.S. Alekseev, L.S. Yavich, N.A. Chechina and other specialists are devoted to the study of legal axioms [4].

According to Professor S.S. Alekseev, legal axioms are “immutable truths” that do not require proof [5]. They are legal principles, mainly in the sphere of legal practice, embodied with the peculiarities of a particular legal field. If this is not observed, the law can lose the character of the will embedded in a legal norm, and this means it ceases to be the law [8].

N.A. Chechina argues that legal axioms are legal norms expressing the content of morality. This is due to the fact that there a need to comply with the norms of behavior which is reasonable in terms of the principles of common sense, morality and justice. It does not require special evidence. Legal axioms also act as basic provisions, the content of which serves as a basis for many other rules of the system. This is because the law must meet justice, the concept of which is accepted in society [9].

A.V. Maslennikov understands under legal axioms ideal phenomena that relate to different aspects of legal reality such as law, legal consciousness and legal science. They are provisions expressing socio-legal experience which are applied as absolute or relative truths to simplify legal regulation and solve scientific problems. They are also used to ensure the continuity of the socio-legal experience being embodied in forms according to their belonging to one or another group [6].

But from this point of view the question arises: if legal axioms are stable “ideal phenomena”, can they be changed?

Professor A.A. Ference-Sorotsky denies the changeability of legal axioms and brings the concept “continuity” as a substitute, which means the preservation of the elements of law. He believes that continuity is due to the continuity of the reality of the society [10].

It can be assumed that legal axioms represent the basis for theoretical understanding of jurisprudence and law. And then, the development of legal science, especially in the field of legal technique, is conditioned in a particular state by the content and level of development of law, because of which they can change [6].

It is worth noting that there are also more stable, generally recognized legal axioms, which in turn will always have value. S.N. Egorov distinguishes such concepts as society, state and legal system from legal axioms, both of theoretical (“every person has free will”, “external freedom of people should be limited”) and normative nature (“laws should be observed”, “all people have equal rights to external freedom”) [7].

As a conclusion, it is worth noting that the works written about legal axioms by the above-mentioned specialists are important for the development of research into the essence of legal axioms, although they do not lead to a general understanding of the nature of this phenomenon.

Legal axioms, despite their stability, under the weight of time change or lose their value in the course of the natural historical process of development of law. Therefore, it appears that legal axioms cannot be equated with absolute truth, but they cannot be excluded from the means of legal technique either. And this leads to the idea that specific legal axioms “have the right” to be a means of legal technique, but only in specific historical stages of development of the rule of law.

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