The Establishment of Legal Rules as an Element of the System of Legal Influence: an Instrumental Approach
| Author | L. Berg |
| Position | Ural State Law University (Yekaterinburg, Russia) |
| Pages | 114-134 |
BRICS LAW JOURNAL Volume V (2018) Issue 3
COMMENTS
THE ESTaBLISHMEnT oF LEGaL RuLES
aS an ELEMEnT oF THE SYSTEM oF LEGaL InFLuEnCE:
an InSTRuMEnTaL aPPRoaCH
LYUDMILA BERG,
Ural State Law University (Yekaterinburg, Russia)
DOI: 10.21684/2412-2343-2018-5-3-114-134
The author considers the essence of the establishment of legal rules as the will of the State
that forms the structure of social relations. Based on an instrumental approach, the author
examines the establishment of legal rules and the rules of law in their interaction with
social activity, which allows subjects to “nd themselves” in the legal system. Thus, the
structures of public authorities, establishments and enterprises are created, their goals
and order of activities are determined, as well as the competence and powers of ocials,
and legal statuses are secured; consequently, the participants, objects, terms of starting,
changing and terminating legal relations concerning society are determined, too. Hence,
the law inuences the content of social relations, which is activity. In general, the results of
the activities of individual and collective subjects of law reect social relations, and social
relations need legal regulation. At the same time, social relations may appear not only
as activity, they may also appear in a passive form as legal statuses, social institutions.
They are also regulated through legal rules, and in that case legal inuence is carried out
through the establishment of legal rules. It is able to predict the legal forms of subject
activities through the establishment of legal rules. The author puts for ward a legal
denition of the establishment of legal rules as a purposeful inuence on public relations,
which is to regulate by means of legal rules. Distinctions of legal regulation from legal
inuence are established. The legal means expressing external factors in reference to the
subject’s will correspond to the establishment of legal rules. However, by analyzing a list of
normative acts we can conclude that legal means should be established more logically. It
LYUDMILA BERG 115
is necessary to consider the dialectics of relationships between purpose and means in the
eld of rulemaking processes, since dialectics is of a two-way determinative nature.
Keywords: legal impact; establishment of legal rules; legal means; legal behavior; legal
activity; legal status; instrumental approach.
Recommended citation: Lyudmila Berg, The Establishment of Legal Rules as an
Element of the System of Legal Inuence: An Instrumental Approach, 5(3) BRICS Law
Journal 114–134 (2018).
Introduction
A new issue has arisen in the evolution of the present-day theory of state and
law, and it needs to be analyzed. The present stage of development of civil society
places demands on the theory of state and law. There should be a continuous ow
of information about social processes and changes in the life of civil society for this
purpose. We need to have not only scientic information about the functioning of
one or another social “subsystem,” but also scientic recommendations to administer
the processes and to inuence them purposefully.
Legal research shows that the evolution of social “subsystems” resulted in
important changes in the content, problematique, methods and structure of the
theory of state and law. The scientic development of the methods and approaches
to legal research constituted a necessity to look at the results attained by legal
science from a new point of view. An acute issue relating to the methods of legal
research arose. It became obvious that the transition from common legal conceptions
to researching legal phenomena needed certain theoretical intermediates, such as
“particular” and “special” summaries and distinct theories. This way, in the structure
of the general theory of state and law, particular legal theories appeared (a theory
of the interpretation of law, a theory of legal awareness, a theory of implementation
of the law, a theory of legal inuence).
The new issue that arose in the theory of state and law cannot be analyzed
without considering a number of circumstances. The theory of state and law and
its particular scientic theories also develop due to the continuous connection with
other legal sciences and their research results.
There is the issue, dicult to comprehend and analyze, which concerns the
structu re of legal influence. Its difficult y lies in the fa ct tha t legal influe nce is
a dynamic process, which changes through time and space. The process results in
the appearance of arranged social links between the subjects of law through legal
rules. The degree of order of social links and the direction of this order might be just
the opposite to the existing order of the law.
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