Legal construction as a category of cybernetic method of cognition of law

Purge Anna Rolandovna PhD in Law Associate Professor at the Department of Private Law of Vladivostok State University 690014, Russia, Primorsky Krai, Vladivostok, Gogol str., 41, office 5502 a.purge@mail.ru Other publications by this author

Among the methodological problems of the modern general theory of law, the problem of legal discourse stands out, i.e. the practical language spoken by law (the language of legal constructions), and the theoretical language in which they talk about law (the language of legal concepts). The current situation in the theory of law reminds us in part of the situation at the beginning of the last century, when "long subordination to Roman law responded to modern jurisprudence with timidity in constructing new legal concepts and a persistent desire to explain the legal phenomena of modern life by the principles of Roman law" ^{[1, p. 7]}. Now, this "timidity" of creating, updating (modernizing) the legal language is due to the same "persistent desire" to explain all the phenomena that are modern to us in the terminological framework of the law, not Roman, but Soviet. In other words, despite the changes in socio-economic conditions, the long-term reform of the legal system, the paradigm of general theory based on the developments of the Soviet law school has not changed.

On the other hand, modern law-making activity requires the use of a variety of methods of legal regulation, the improvement of legal technology, allowing the best way to express the will of the legislator, contributing to the simplification and acceleration of the implementation and application of law. Such legal means include legal constructions.

Therefore, the need to study several other directions of the development of the general theory of law, which were neglected in Soviet times, is becoming more and more urgent. In particular, we are talking about legal technology, the art of law-making, the modernization of the terminology of the legislator itself, and ultimately about the renewal of legal thinking and the entire legal paradigm. We are talking about a slow but noticeable, as it seems, transition of researchers to cybernetic methods of cognition of law and law-making, modeling of legal situations and the establishment of complexes of legal fictions - legal constructions. The formation of a complex of legal structures for emerging industries is especially relevant: researchers note the growing interest in them ^{[2, p. 124]}. Terms such as legal construction, legal regime, legal status - although they were known to Soviet law, nevertheless, did not play the basic role for the legal language that they are acquiring now.

The concept of legal construction is the result of applying a certain cybernetic method of cognition of law to law. One of the methods related to the tools of this method is the method of modeling. In other words, a legal construction is a model obtained as a result of applying a cybernetic modeling method to a public relation (or rather, to the method of legal regulation of this type of public relations).

The issues of the category under consideration in the aspect of the general theory of law were developed in Russian science only by D.E. Ponomarev ^[3] and V.V. Chevychelov ^[4]. In addition, there are a number of studies of legal construction at the sectoral level: I.V. Babicheva ^[5], D.I. Ivanchina ^[6], V.V. Pereverzeva ^[7], A.V. Chepika ^[8]. Nevertheless, it is difficult to recognize such a large number of works for such an abstract category as sufficient: it is no coincidence that M.V. Tuzovskaya refers the concept of the category of legal construction to the number of "white spots" of the theory of modern legal technology ^{[9, pp. 163-164]}. Indeed, in the literature on the concept, the structure of the legal structure (the content of this concept) and its relationship with other means of law-making techniques, it is difficult to find at least a few common opinions. However, after 2015, studies of this category stop: the last one can be called the work of Yu.A. Golubtsova in 2015 ^[10]. At the same time, studies of the "legal structure" appear (the works of L.A. Popkova in 2018 ^[11] and O.S. Gruzdev in 2019 ^[12]). However, almost all of these (and other) narrowly sectoral studies of legal construction (or legal construction – in cases where they are considered identical concepts) have one common drawback: they limit or, on the contrary, expand this category in relation only to their own, branch subject of research. Meanwhile, the analysis of such categories should be based on a comparative method that allows us to compare similar legal phenomena and identify their common features, which under such conditions will constitute a general theoretical concept of legal construction.

The general classification of legal constructions can be constructed by the same technique that builds the entire system of law: by subject and method, i.e. by those specific social relations to which one or another legal construction is applicable. From this point of view, it is permissible to distinguish public-legal and private-legal constructions. Among the first, it is also possible to distinguish substantive and procedural legal, among the second - civil, family-legal, labor-legal legal structures.

In turn, intra-industry legal structures can be: 1) industry-wide, used in almost all departments of the industry, or 2) structures of local application. On the other hand, there are also intersectoral legal constructions that are borrowed from one legal sphere to another (others). For example, the construction of a legal entity is also used outside of civil law - in public law (Administrative Code of the Russian Federation).

Intra-industry legal constructions are an element of another classification of constructions: into general legal, intersectoral and branch-specific ones ^{[13, p. 126]}.

Another classification is based on the fact that "legal construction can be based not only on the norms of positive law, but also on existing legal constructions. The "constructions created on structures" (meta-constructions) formed as a result of such a procedure form the supporting basis of legal and dogmatic concepts (doctrines, teachings)" ^{[3, p. 10]}. The distinction between primary constructions and meta-constructions consists in the fact that the latter (constructions of the second and subsequent levels), as created on structures, cannot be disclosed in the form of a scheme of rights and obligations, since they are too abstract and "indecomposable" for this. "Meta-constructions ... act as links connecting the structures of the lower levels into an integral scheme in order to ensure their effective operation ... meta-constructions "roll up" the relationships between the structures of the lower levels" ^{[3, pp. 127-128]}.

Another classification of legal constructions is into normative and theoretical ones. As A.F. Cherdantsev believed, "Legal constructions that find a certain consolidation and expression in the norms of law could be called normative legal constructions, in contrast to theoretical legal constructions used by legal science as a method of cognition of law. There is no boundary between normative and theoretical constructions that would completely separate one from the other... Normative legal construction finds expression in the constructions of legal science and, conversely, theoretical constructions can turn into normative" ^{[14, p. 150]}. The same point of view is shared by V.M. Baranov and Yu.L. Mareev ^{[15, p. 727]}.

Criticizing this classification, A.V. Ivanchin notes that "any legal construction, acting as a means of legislative technique, finds expression in legislation to one degree or another, and therefore the division proposed above cannot, in our opinion, be recognized as successful. For this reason, apparently, it was not perceived by S.S. Alekseev, who interpreted legal constructions precisely as a means of constructing normative material, and not knowledge of law" ^{[6, p. 117]}.

According to V.V. Chevychelov, "the legal structure, before being embodied in legislation, is modeled by scientists. That is, the normative construction necessarily passes the theoretical stage," from which a conclusion is drawn about the insolvency of A.V. Ivanchin's arguments.

Considering this discussion, first of all, it can be noted that V.V. Chevychelov's argument does not refute A.V. Ivanchin's arguments in any way. The fact that a normative construction necessarily "passes the theoretical stage" (not always, unfortunately and contrary to V.V. Chevychelov's opinion, being modeled by scientists), i.e. it is reflected in the legislator's head in the form of a certain model, does not at all mean its existence as a real (not "theoretical"), i.e.e. a construction arising from an objectively valid law and order.

One cannot agree with A.V. Ivanchin's arguments for another reason: it cannot be argued that "any legal construction ... finds expression in legislation to one degree or another." It is quite acceptable to have legal constructions that, being objectively true, were not perceived by the legislator. As not every tool is subject to application, so not every legal, i.e. passed theoretical understanding, construction - becomes a legislative construction. Moreover, A.V. Ivanchin's arguments completely miss an array of legal constructions that, by definition, cannot be "legislative" - legal customs.

And yet there is a certain rightness in A.V. Ivanchin's reasoning. The central problem is that "the very expression "legal construction" is ambiguous in science" ^{[2, p. 125]}. Therefore, even being a means of legislative technique, the legal construction in science is also understood as a means of cognition of law, and these categories cannot be identified, which he quite rightly points out. In other words, A.V. Ivanchin posed the problem of differentiation of these concepts, based on the differences between the theoretical understanding of a particular construction and its consolidation in positive law. However, the problem of differentiation of these concepts looks somewhat deeper. It seems that it is necessary to distinguish between 1) constructions created by a really existing legal order, which requires a materialistic method of thinking in itself, 2) constructions created by science and reflected in the head of the legislator (which also does not always coincide, contrary to V.V. Chevychelov's opinion), 3) constructions as they are implemented in positive law.

Having defined these concepts, it is necessary to state their one-level (from the point of view of logic) character, in connection with which it is necessary to introduce a fourth - generic concept in relation to these species. Such a (highly conditional) concept could be the concept of "construction in the legal sphere". This generic concept should cover all three specific concepts.

Thus, this discussion, it seems, cannot be completed due to the insufficiency of the conceptual apparatus. It only actualizes the task of differentiating:

1) constructions that objectively exist in the current legal order (they should be designated as "legal constructions"). It should be noted that the problem of such a distinction has already been raised in our science by V.I. Chervonyuk, who showed on a number of practical examples that the mechanism of legal education in modern Russia does not always adequately identify the legal (objectively existing in the current Russian legal order) structure, comprehending it as legal, and even more so does not always adequately transform the identified and a meaningful legal structure in science - into a legislative one ^{[16, pp. 29-31]};

2) the constructions reflected in the scientific legal turnover are actually "legal constructions", legal thinking models that are subject (as a rule, but not necessarily) to normative implementation (i.e. fixation in the form of a set of norms in the texts of normative legal acts),

3) legal constructions fixed in the texts of normative acts, which allows (in a certain sense, since they are not always fixed in legislation; it is rather about reflecting them in positive law) to call them "legislative constructions" or, more precisely, "constructions of positive law".

It should also be noted that, perhaps, the only construction where all three named constructions coincide (are in an undifferentiated unity) is a construction created by legal custom. It initially fixes the basic legal construction, serves as the only form of its expression and existence. Interestingly, the legal custom does not even require the acquisition of the status of a "legal construction", i.e. it does not need any understanding (including "theoretical"), acting directly as a natural rule arising from the very order of things.

In any case, it is obvious that in a narrow sense, i.e. as only a means of law-making technique, a legal construction should not be identified with a legal construction, or even with a construction implemented in positive law. On the contrary, a legal construction as a "construction in the legal sphere" can be divided into appropriate types, implying that in this case not every objectively existing construction in the rule of law will be interpreted as "legal" and, further, not every legal construction, even if it turns out to be in the potential composition of the means of law-making technology, will be implemented by the law-maker. Of course, contrary to the opinion of A.V. Ivanchin, the legal construction will not cease to be a means of law-making technique only for the reason that it has not been implemented in positive law, but will remain in the tools of the law-maker.

However, this classification and conceptual problem has its continuation - in connection with the relative, but universally recognized independence of law enforcement practice. Thus, it is difficult to exclude (and with the development of the principle of competition in procedural branches - and it is impossible) - the appearance of law enforcement ("precedent") constructions. It cannot be ruled out, as practice develops, and their increase, complication, when one law enforcement structure becomes part of another, more general, or vice versa, an "exception structure" is formed on a previously arisen structure, etc. Moreover, below we will talk about legal implementation structures in private law, which together makes it possible not to solve, but only to get closer to solving the problem of defining the concept and classification of structures.

Concerning intra-industry structures, it is possible to note the research conducted by A.V. Ivanchin. In his opinion, all criminal law constructions are classified into:

a) built on the basis of criminal law concepts, terms, constructions (of a smaller scale), in particular, specific compositions (theft, banditry, abuse of authority, etc.). In addition, he identifies 4 types of structures: 1) the construction of an act committed under circumstances precluding its criminality; 2) the construction of punishment (more precisely, specific types of punishment: fine, compulsory labor, arrest, imprisonment, etc.); 3) the construction of exemption from criminal liability; 4) the construction of exemption from serving a sentence;

b) constructed without their application: criminal law norms, their structural elements (dispositions and sanctions), legislative constructions of types of criminal groups (Article 35 of the Criminal Code of the Russian Federation ^[17]), sanctions of articles of a Special part and some other normative constructions.

The study of the types of procedural constructions was conducted by V.V. Pereverzev. First of all, he rightly distinguishes constitutional-procedural, civil-procedural, administrative-procedural, criminal-procedural constructions, noting that a special construction is the procedural form.

He also identifies a number of specific features inherent in civil procedural constructions. In particular, in his opinion, "civil procedural means mediated by legal constructions act as a way to achieve the goals of the subjects of civil proceedings for the correct and timely consideration and resolution of civil cases, protection of violated or disputed rights, freedoms and legitimate interests of subjects of civil proceedings… In addition, these procedural means have legal force for subjects of civil proceedings" ^{[7, p. 110]}. This leads him to the conclusion that civil procedural constructions "are providing in relation to material and legal means - civil, family, labor, housing, land, environmental and lead to legally significant consequences" ^{[7, p. 111]}.

In fact, he creates a classification of "basic", i.e. substantive and "auxiliary", "supporting" - procedural legal structures. However, it seems that the process, no matter how arrogantly Soviet science treated it, which always found it "providing", not independent, only a "protective" institution in relation to substantive law, completely dependent on it, as well as procedural legal constructions, can hardly be recognized as "auxiliary" in relation to substantive law.legal constructions. Criticism of this classification, however, lies beyond the scope of the problem under consideration.

By the mandatory nature of the elements of the legal structure, it is possible to distinguish constructions with mandatory elements and optional (non-essential, definable) elements. This is due to the nature of the method of legal regulation - dispositive or imperative. Thus, the construction of the corpus delicti is imperative for the law enforcement officer, who is obliged to establish in the act of a person to bring him to criminal responsibility an object, an objective side, a subject, a subjective side, otherwise - to release the person from criminal responsibility. On the contrary, the construction of a civil contract is definable, since some of its conditions in situations where they are not stipulated by the parties in the agreement are determined by the dispositive norms of the Civil Code of the Russian Federation. This is, for example, paragraph 1 of Article 485 of the Civil Code of the Russian Federation.

The study allows us to conclude that one of the significant features of a legal structure is its normativity, or abstract nature, i.e. typicality, or isolation from a specific legal situation, a specific legal fact, specific subjects. In other words, a legal construction is a model achieved by applying a cybernetic method to law.

The concept of legal construction reflects the desire for a cybernetic method, which in the legal sphere is expressed to the universalization of concepts, to the formation of a large number of legal standards and unified legal structures fixed in positive law. At the same time, the formalized nature of legal structures does not in any way hinder the implementation of the principles of justice and equality. In general, a legal construction is a model of public relations regulated by law or their elements.

So, the legal construction is a primary legal concept capable of objectification in the norms of law and acting, if there is a basis, as a substantive legal principle. The certainty in the norms of the law of subjective prerogatives and duties is not achieved spontaneously by virtue of the dictates of the legislator, but is based on a concept that ensures their objectification and substantiation in connection with a particular fact. The legal constructions themselves can be considered as generalized social facts, the legal features and properties of which are significant for participants in legal communication.

Now it seems relevant to introduce specific terms into scientific circulation that allow distinguishing, firstly, constructions that objectively exist in the current legal order ("legal constructions"), and secondly, constructions reflected in scientific legal turnover - actually "legal constructions", legal thinking models that are subject to (as a rule, but not mandatory) normative implementation (i.e. fixation in the form of a set of norms in the texts of normative legal acts); thirdly, legal constructions enshrined in positive law and in the texts of normative acts - in particular, which allows them to be called "legislative constructions" or, more precisely, "constructions of positive law". Having defined these concepts, it is necessary to state their one-level (from the point of view of logic) character, in connection with which it is necessary to introduce a fourth - generic concept in relation to these species. Such a (highly conditional) concept could be the concept of "construction in the legal sphere". This generic concept should cover all three specific concepts.

In any case, it is obvious that in a narrow sense, i.e. as only a means of law-making technique, a legal construction should not be identified with a legal construction, or even with a construction implemented in positive law. On the contrary, a legal construction as a "construction in the legal sphere" can be divided into appropriate types, implying that in this case not every objectively existing construction in the rule of law will be interpreted as "legal" and, further, not every legal construction, even if it turns out to be in the potential composition of the means of law-making technology, will be implemented by the law-maker.

However, this classification and conceptual problem has its continuation - in connection with the relative, but universally recognized independence of law enforcement practice. Thus, it is difficult to exclude (and with the development of the principle of competition in procedural branches - and it is impossible) - the appearance of law enforcement ("precedent") constructions.

Moreover, their "multiplication" inevitably follows from the peculiarities of legal constructions in private law. First of all, the classification of structures itself will not end at this number, since there is a need to identify and determine the place in this system of right-realization (another type) structures.

The development of the latter can lead to the refutation of the point of view that the "legal construction" is the result of their recognition in legal science or in the head of a lawmaker. The legal construction can be designated, ultimately, as the result of a legal synthesis. The fact is that the need to recognize the mass of new structures as the current legal order follows, for example, from Article 8 of the Civil Code of the Russian Federation. The law itself allows for the emergence of such contractual constructions that were not conceivable either by legal science or by the creator of positive law (and therefore cannot be called either "legal" or "constructions of positive law"). Hence the infinite multivariability, the diversity of content of these right-realization constructions within the framework of the rule of law and the need for their new, broader definition.

The analysis of legal constructions in private law allows us to conclude that they, according to the source of their formation, can be divided into three types:

- legal legal constructions, i.e. those that are formed mainly on the basis of civil legislation. In this respect, the German model of "forced typification" of property rights is characteristic, which assumes the uniform consolidation of all subjective rights to things (property rights) in a law or other legal act, i.e. the complete establishment of the content of the property relationship in the law.;

- contractual legal structures, i.e. those that are formed on the basis of the free will of the parties and the content of which are mainly rights and obligations that the parties have established for themselves (provided that these rights and obligations do not violate the rights and legitimate interests of third parties);

- the usual legal constructions. This type of legal constructions grows out of the contractual obligations of the parties, as a rule, entrepreneurial activity, but acquires independent significance as it is consolidated in business and judicial practice (including in arbitration, arbitration disputes), becoming an independent regulator in relation to the parties. In the literature, there is a concentration of scientific interest on the legal nature of custom in private law, whereas the definition of the legal structure of a custom, the identification of its elements as a legal model, its analysis for proper inclusion in the mechanism of relations between entrepreneurs is of much greater practical importance. In other words, the question of how, to what extent, to what extent this or that custom affects the relations of the parties, in particular, the place of performance of obligations, the structure of the price of goods (work or services), the deadline, the principle of solidarity and interaction of the parties in the performance of obligations, etc., is of interest.