Teisės socialinio veikimo modeliavimas ir jo ribos: sociologinis požiūris

Abstract

The purpose of this research is to analyze the model of the social operations of law from the perspective of the sociology of law and to define the present boundaries of the modeling of this effect. The boundaries of modeling appear due to the insufficient empirical experience of the social operations of law.
The modeling of the social operations of law relies on the perception of the totality of real intermediate conditions and processes which affect law within the context of social relationships as it comes into existence and the interval in which it is applied. These intermediate conditions and processes of law are fashioned by the interrelationships between law and other important social factors and the mechanisms through which law operates. This is what underlies the understanding of the evolution of law from the forms of its manifestation to the structure of its application and its operating mechanisms.
The present article formulates the notion of the modeling of the social operations of law and analyzes the mechanisms of the functioning of law. The mechanisms are defined as following:
1) legal (mechanism of legal regulation);
2) social (in its narrow sense);
3) psychological;
4) informational-communicational.
The social operations of law can be modeled only after having estimated the role of the latter mechanisms and having revealed the regularities of their effect on law. The relationship between society's self-regulatory processes and the regulation implemented by the government also affects the operation of the social mechanisms of law. This relationship is a difficult one to define, therefore it complicates the accuracy of the modeling of the social operations of law. Therefore, one of the directions in which modern theory of law is to be developed should be the providing of a consistent theoretical basis for the social operations of law. The present article reviews the problems (boundaries) related to the modeling of the social operations of law.
The main conclusions which the article points out embrace all the levels of the social operations of law: 1) the level of the systems of social control; 2) the level of social factors; 3) the level of the systems of the transmission of legal information; 4) the level of the regulated systems and the consequences of legitimate behavior.
1. The level of the systems of social control. The social purpose of law remains undefined, therefore it limits the reliability of the modeling of the social operations of law. The partial goals of various forms and institutions of law that have been formulated within the context of different definitions of the social purpose of law usually generate a deep conflict of norms and values, which emerges in the process of the application of law and thereby undermines society's trust in the main social values. Unless the legal regulation of the state, which seeks to fulfil man's socioeconomic rights and freedoms, is balanced in accordance with the social orientation of law, the ethical, psychological and communicative effects of law may negatively affect the trust in the rights and freedoms of the first generation, their conception and use. The legal norm, which is established at the final stage of the lawmaking processes, must correspond to the social orientation of law.
2. The analysis of the social factors of law shows that the interaction between the operations of law and the constant changes in society gives rise to the factors (conditions) which have a negative effect on the operation of legal norms and have undesirable social consequences. These social factors are difficult to predict and thus form the obstacles of the modeling of the social operation of law, but they can be overcome by implementing systematic empirical research into the social operation of law, which can afterwards serve as a basis upon which the existent legal norms may be corrected.
3. The modeling of the social operation of law often overlooks the possibilities of transmitting legal information by part-formal and informal channels of communication. These channels are not being defined and their social consequences do not gain proper attention on the part of law. The state must therefore undertake the initiative to develop the nets of the communication of law, especially in the area of cyberspace.
4. The infinite degree of the modeling of the social operations of law further increases through the unclassified range of the manifestations of the legal mentality and legal behavior of the members of contemporary society, a phenomenon that has not yet come to the attention of a systematic empirical analysis. Modern theory of law should review and generalize the data collected on the basis of the empirical research of legal and illegal models of social behavior since these data would substantially provide more grounds for the modeling of the functioning of the legal norms of legal positivism.