ГЕНЕЗА ТА КУЛЬТУРА ПРАВОВОГО МИСЛЕННЯ

Abstract

The article analyzes legal thinking as an important component of the legal culture of the individual. It corresponds to the general characteristics of thinking and has its own specific features. Modern legal thinking is based on the principles of both rationalism and irrationalism, because the understanding of law as the primary link of legal thinking is an evaluative activity that consists in comparing legal norms, phenomena of social reality with the value of law and legal values.

Historically, the formation of legal thinking can be attributed to the ancient period. It was in ancient Greece and Rome that court hearings appeared with the parties and witnesses. In clarifying the circumstances of the case, the parties, witnesses, praetors and judges based their reflections on ideal objects, the detachment of which from reality could lead to miscarriages of justice and injustice.

Aristotle, in the plane of thinking, solves the problem of prejudice by resorting to moral and ethical norms. And then, based on morality and justice to use the laws of logic in the field of ancient justice. Thus, the philosopher as a result of legal thinking finds 3 key links of objectivity and independence of the judicial process: justice, morality, logic.

The next significant stage in the development of legal thinking took place in ancient Rome. And if Aristotle considered justice in the ethical plane, the idea of Roman law shifts the emphasis to the plane of government and state organization. Moreover, this process took place gradually, going through three types of litigation: legisactive, formulary and extraordinary, each of which was more perfect than the previous one.

Thus, in ancient Rome, there was a process of transferring the understanding of justice from the moral and ethical plane to the sphere of power and administrative management, which was based on clearly defined and guaranteed actions of the authorities and their subordinate courts. The Roman authorities managed not only to guarantee justice within the existing laws, but also to create mechanisms that allowed to abandon outdated laws and create new ones (praetorian formulas in the formular process, administrative decisions of prefects - in the extraordinary). In addition, the possibility of appealing a court decision becomes a new guarantee of a fair trial.