Ivanova A. Yu. Legal consciousness as a source of law in transitional states (for example, the Ukrainian revolution of 1917–1921)
The legal consciousness as a source of influence on the phenomenon of social reality is highlighted.
In transitional States the existing legislation do not responding to new social realities and relations. The law enforcement authorities to develop a “new law” is not governed by this old law, and refer to primary sources of law, or simply their own ideas about justice. It is not surprising that in such times is activated the legal consciousness as a direct source of law.
Legal consciousness is defined as a form of social consciousness that reflects the attitude of business relations with applicable law and derived his legal phenomena. There are also definition of legal consciousness as a form of social consciousness, the essence of which is a set of concepts, ideas and principles about the nature of law and all its related phenomena. Positivism limits the scope of legal consciousness by existing law and its possible influence – by law enforcement activities. This is due to the fact that the legal consciousness is explored as an object of legal regulation. Going beyond the positivism makes it possible to include within the scope of legal consciousness ideas of justice and therefore desirable law and realize opportunities to influence not only in the law enforcement but also in law-making practices. In general, the view of legal consciousness as a source of influence allows you to identify the following areas and forms of application.
It is logical to assume that justice, in particular the idea of justice that guided the various subjects of the law were unequal. Thus, the content of legal consciousness as a direct source of law enforcement activity depends predetermined by legal consciousness of the specific subject of such activities.
Depending on the subject entitled realizable activity it cans highlight the following forms of legal consciousness as a direct source of law:
1. Professional legal consciousness – judicial discretion in deciding or choosing what guided by laws or revolutionary legal consciousness;
2. Revolutionary legal consciousness as the views of the individual judge on political expediency (the Soviet experience);
3. Legal consciousness of the people, which largely coincides with customary law;
4. «Justice» crowd that is not in the normal legal conscionsness (city lynching).
We can distinguish two ways of applying legal consciousness as a direct source of law.
1) Official way – when the right to enjoy the revolutionary legal consciousness assigned to state judicial authorities in law (for example, the famous Decree on court number 1 on November 22 (December 5) in 1917) and 2) Informal way – when justice is applied in the exercise of the judicial function in parastatal enforcement (eg, traditional peasant justice).
Interestingly, the use of legal consciousness as a source of law official judicial bodies apply most professional individual legal consciousness, while informal forms characteristic is update daily collective conscience. It seems that none of them has in its pure form, but apparently it is an advantage of negative elements of legal psychology characteristic of everyday consciousness, in cases of non-state justice led to sometimes screaming beyond the right.
It is noted that in the law-making is an important adoption to legal consciousness of the people and one of a individuals and social groups.
It is concluded that the content of justice as a direct source of law in the enforcement of justice due to the particular subject of such activities.
Key words: legal consciousness as a source of law, the revolutionary justice, customary law, traditional village court, lynching.