Legal Acts as a Form of Manifestation of Legal Reality


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Anais da Academia Brasileira de Ciencias (2018) 90 (2): 1982-1989 (Annals of the Brazilian Academy of Sciences) Printed version ISSN 0001-3765 / Online version ISSN 1678-2690 http://scielo.br.com/en/scielo.php/script=sci_serial&pid=0001-765&nrm=iso www.scielo.br/aabc

Legal Acts as a Form of Manifestation of Legal Reality DARYN SABURGALY1, UNZILA SHAPAK2 and VITALIY KHAN3 1Master

of Laws, Department of Theory and History of Statehood and Law, Kazakh Humanitarian Law University, Kazakhstan, Astana 2Professor, Doctor of Jurisprudence, Department of Theory and History of Statehood and Law, Kazakh Humanitarian Law University, Kazakhstan, Astana 3Rector, Candidate of Juridical Sciences, Department of Public Law, Dzholdasbekov Academy of Economics and Law, Kazakhstan, Taldykorgan ABSTRACT

The consideration of law as a means for regulating people's behavior and ensuring their interests can be carried out in the aspects of the mechanism of legal regulation of public relations, the mechanism of the law, and also in connection with the issues of the formation of legal awareness, lawful and unlawful behavior, legal culture, the improvement of the legal education system, etc. It means that the right in the mechanism of regulating people's behavior can be considered in a wide range. We will discuss some of these aspects in more detail in this article. Key words: legal act, legal reality, legal regulation, social-legal environment, legal means.

INTRODUCTION The questions concerning the mechanism of legal regulation are rather developed in the theory of statehood and law. S.S. Alekseyev, a pioneer in the formation of the category "mechanism of legal regulation", considered the concept of "mechanism of legal regulation" as a derivative of the definition of legal regulation. The latter provides for an effective, normative and organizational impact on public relations through legal means, including legal norms, legal relations, individual prescriptions, etc., in order to match the development of society and its needs (Alekseyev, 1982). Meanwhile, there are other points of view in the theory of statehood and law. So, the concept "mechanism of legal regulation" is interpreted narrower than the concept of the mechanism of legal impact. The latter, according to M.N. Marchenko, is broader than the concept of "regulation", in so far as the impact combines, along with the regulation, through legal norms, other legal means and forms of influence on people's behavior (Marchenko, 2000).

A.M. Vasilyev points to the importance of developing the category "mechanism of legal regulation" for the theory of law, which determined the general in the process of legal regulation and established the links between the elements of the mechanism, in the absence of which the existence of the elements is impossible, as well as places in the system of each such element. “The formation of the category "mechanism of legal regulation" is associated with the synthesis of some previously existing theoretical concepts and with the conclusions made by this time in the relevant legal scientific fields” (Vasilyev, 1976). K.V. Shundikov (2001) considers the mechanism of legal regulation as a system of all legal means organized in a coherent way, through which an effective special legal impact on public relations is provided. "The mechanism of legal regulation" can also be presented in the following forms: the mechanism of lawmaking; the mechanism of legal management; the way of functioning and the system of means of influence; "working" systemic legal superstructure (Rassolov, Luchin, An Acad Bras Cienc (2018) 90 (2)

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& Ebzeyev, 2004). In addition, researchers emphasize that the mechanism of legal regulation is a system of consistently organized legal means aimed at the full satisfaction of the interests of participants (Matuzov & Malko, 2003). Some authors, along with the mechanism of legal regulation, include legal awareness, legal culture, principles of law and lawmaking in the mechanism of legal impact. In this case, the ratio of legal impact and legal regulation is presented as a ratio of general and specific. As a cultural and informational value, the law determines the orientation of human activities, introduces it into the general framework of civilized social relations. It is in this sense that the legal impact is broader than the legal regulation of public relations (Komarov, 2002). One of the aspects is the interrelation between the issues of the legal mechanism and state development. V.N. Khropanyuk (2002) notes that the mechanism of legal regulation, i.e. the system of legal means, through which the orderliness of social relations is carried out, has to be consistent with the goals and objectives of the rule of law. A.I. Bobylev (1999) considers the mechanism of legal regulation as a set of legal means that allow the state to realize the legal impact on public relations in a desirable direction for it. When analyzing scientific categories of the mechanism of legal regulation E.F. Mamedov (2013) comes to the conclusion that this category "includes the whole system of legal means (legal norms, legal facts, prohibitions, permissions, positive obligations, etc.), through which the legal impact on public relations is provided, including through the legal quality of normative legal acts" . Despite the existing differences in the categories presented by legal scholars, their opinion is related to the fact that legal regulation is provided by the state and is implemented through the issuance of compulsory rules of behavior. Qualitative indicators of legal regulation are directly related to the state of the legislative framework, as well as to its implementation in practice.

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MATERIALS AND METHODS As we found out, in recent studies there is a tendency to analyze the process of legal regulation through the formulation of established legal customs as a rule of law, as well as the establishment of new legal regulations sanctioned by the compulsory force of the state in legal acts. The regulation of public relations through legal acts is considered as a planned legal impact on public relations. However, social connections of individuals based on legal norms under formation come to the forefront (Dolgopolova, 2009). Y.A. Tikhomirov (2008) characterizes legal regulation as an institutional, cognitive mechanism for establishing normative legal rules of behavior (activities), mandatory or recommendatory, for their provision and implementation. Its basic components are the objectives and subject, participants, objects process, stages methods, results and a new cycle of legal regulation. The analysis of legal literature shows that the mechanism of legal regulation combines a set of legal means, through which the state exerts a legal impact on social relations in the framework of its policies. In the structure of the mechanism of legal regulation, the following basic elements are distinguished: legal norms, legal relations, the acts of the implementation of rights and obligations (with respect to the stages of legal regulation) and law application acts (Alekseyev, 1982). The idea of V.M. Syrykh (1998) is that the structure of the mechanism of legal regulation based on its constituents is insufficient. In order to describe completely the mechanism of legal regulation, it is necessary to have a comprehensive approach taking into account all its elements in their interrelation and interdependence. When using a comprehensive approach to the analysis of the legal regulation mechanism the latter can be described as a unified system consisting of legal means, actors and legally significant outcomes of their actions. There are three components: lawmaking, the implementation of legal norms and the application of measures of state-power coercion. An Acad Bras Cienc (2018) 90 (2)

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Each of these mechanisms is implemented at its own stage of legal regulation - from lawmaking to the implementation of the law and the application of legal liability measures (Syrykh, 1998). According to S.Y. Chapchikov (n.d.), the sphere of legal regulation should include those relations that have the following characteristics: "Firstly, these are relations in which both the individual interests of members of society and general social interests are reflected. Secondly, in these relations the mutual interests of their participants are realized, each of whom admits some kind of infringement of his (her) interests for the sake of satisfying the interests of the other. Thirdly, these relations are built on the basis of consent to comply with certain rules, recognition of the mandatory nature of these rules. Fourthly, these relations require compliance with rules, the binding of which is backed by a sufficiently effective force" (Chapchikov, n.d.). The process of regulating people's behavior through legal acts can be traced on the basis of the mechanism of action of law. The concept of the latter includes not only the legal aspect itself but also concepts from legal sociology and psychology. In this regard, the mechanism of action of law is viewed as a complex system of social and legal means, which includes legal principles, social and legal institutions in their unity and interrelations with people's social activities. This system is aimed at the fulfillment of certain goals and tasks by legal methods (Goyman, 1992). In this vein, the mechanism of action of law is represented by the following components: social actor operating in the sphere of law; social and legal means; social and legal conditions (Goyman, 1992). Let us consider a social actor (an individual or a group of individuals) as a component of the mechanism of action of law. In the mechanism of action of law, an actor is understood as citizens and organizations, which implement the principles of law and its regulations or use legal means to satisfy their interests, as well as state and public structures, which participate in ensuring the implementation of the law. An Acad Bras Cienc (2018) 90 (2)

Traditionally, the concept of actor in the theory of law is considered mainly from the position of its external characteristics. The study of the issues of the interrelation between law and personality is not carried out enough by theoreticians. The "human factor" is important for legal practice. As experts note, the existing potential in the development of personality’s issues and the development of the psychological side of law require from lawyers the perception of the principle "a person is a measure of all things" and its implementation in practice. Thus, the theory of the realization of a person in law and the realization of legality in a person is put into practice (Chervonyuk, 2003). The personal approach in the system of jurisprudence is characterized by the fact that “potential reserves of law can only be understood with regard to the processes taking place in the life of society, a family and an individual” (Nechayeva, 1991). The personal approach is a way of cognition and transformation of reality according to the principle "a person is a measure of all things", i.e. a person, his (her) priorities, rights, and interests are considered as basic in legislation, law enforcement practice, legal science, and legal policy. An individual is viewed not only as an object of legal regulation but also as an actor, which creates law. "In this sense, human personality appears as a force, which creates and transforms social reality through law. On the one hand, this requires legislators to reflect most fully, in the adopted laws, the priorities, values, and interests of an individual, his (her) aspirations and goals, which will give the law the necessary personal reinforcement. On the other hand, the personal orientation of law is determined by how effectively its addressees are provided with legal means to realize their intentions and initiative actions as well as to protect themselves from arbitrariness" (Goyman, 1992). In order to implement a personal approach, it is very important to provide training for the new generation of legal cadres. In this connection, the correction of the existing policy in the field of legal education is necessary. Currently, an individual is considered mostly as a legal category, for example, as a plaintiff, defendant or

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carrier of legal capacity in civil law, and as an actor of the element of an offense in administrative and criminal law. It is necessary that the system of legal education take into account the orientation towards an individual. In this case, an individual will be able to transform the legal reality, eliminate the flaws that exist today in law enforcement activities, determine the right vectors for the development and implementation of the state's legal policy. The social and legal conditions for the action of law is a social and legal environment in which law acts and “the being of its actors occurs (Goyman, 1992). These include legal and social phenomena, the state of the material and the ideal, all of them directly or indirectly affect law, define its characteristics, efficiency and social core. The special activities of the authorized bodies for the enactment of laws and their implementation are among the objective conditions of law formation. Subjective conditions consist of legal views, ideas, attitudes, legal thinking, legal culture of an individual and society, legal ideology and state policy, determining the strategy for further legal development, and other factors. Different components of an environment affect the behavior of people in the field of law. A legal person and a social-legal environment are connected and interact with each other in order to perceive and convey the ideas, norms, and values of a legal person to an environment. This interrelation and interdependence have an important influence on the formation and implementation of the law and its effectiveness. In relation to actors, an environment manifests itself in different aspects. This fact explains the situation when the same legal act under different conditions (for example, in different regions) can be perceived and act differently: from complete or positive perception to rejection. The environment of action of law unites in itself various areas. The prevalence of constructive provisions and regulations in it creates favorable conditions for the realization of the mechanism of action of law, and, conversely, the presence of destabilizing principles and norms will lead to unjustified non-legal consequences.

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The social-legal environment and the international legal environment have a significant impact on all types of legal activities (Goyman, 1992). In the lawmaking, it affects the definition of the type and level of legal regulation, ways to ensure regulated behavior and the adoption of decisions using different political instruments, including lobbying, the media, etc. Legal persons experience the most tangible influence of the environment. Under adverse conditions of the social-legal environment, the effect of laws can become difficult. In such circumstances, situations are possible when the actors will be forced to use non-legal means, which is an extremely undesirable phenomenon. The impact of the environment is also evident in the law enforcement process, for example, in some countries (during the period of color revolutions in Ukraine and Kyrgyzstan), there appeared the so-called "megaphone or street protest law" or "crowd law", which is used against the application of law by state bodies and their officials, and became quite common. Such new forms of interference in the administration of justice and in the activities of state bodies as the blocking of buildings, the conduct of street protests, pickets and rallies with putting demands have emerged. Such a situation creates negative conditions when the actions of offenders are not blamed but, on the contrary, are supported in the mass legal awareness. In this situation, the rule of law loses its direct meaning. There is a change in ideology, the main principle of which is the interests of the new authorities. The field of law enforcement is also interconnected with the influence of the sociallegal environment, which is especially noticeable in modern conditions; in particular, it is a question of when religious and national historical factors exert a destructive influence on mass consciousness. This problem is especially relevant for the CIS countries, in particular for Kazakhstan. It is impossible to solve social and political problems with the help of legal means alone without considering such factors. RESULTS AND DISCUSSION Thus, it is impossible to deny the influence of the factor of the social-legal environment. This An Acad Bras Cienc (2018) 90 (2)

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category is at the crossroads of several areas, i.e. jurisprudence, sociology, and psychology. This explains its multi-aspect nature. The factor of the environment occupies an important place in the mechanism of action of law. As specialists say, if a legislator leaves the law alone to face its addressees without taking into account the characteristics of the environment, then it is possible that the results of such action will be opposite to those that were supposed (Goyman, 1992). This suggests that monitoring of the environment is necessary, which will allow predicting positive and negative changes related to the legal impact, the impact of regulatory acts on the people’s minds and behavior and allow having an idea of possible inconsistencies in the environment and law and of the possibility to solve such problems. Social legal means in the mechanism of action of law are the optimal ways of solving the problems facing a social actor (society, social group or individual). These ways are adequate to the conditions of the system and conditioned by the nature of law (Goyman, 1992). Legal and social resources are sometimes singled out among the social and legal means accordingly. Social means unite the material, organizational, ideological and other components, which, in the language of sociology, form a "factors fan", directly influence an actor operating in the legal sphere, and predetermine, to a large extent, the nature, direction, and intensity of its social and legal actions (Goyman, 1992). The conducted sociological researches have shown that various non-legal phenomena in 76% of cases act as factors, which impede the implementation of the norms of law (Goyman, 1992). In practice, it is very important to identify those phenomena that affect the behavior of people in the sphere of law, the formation and implementation of its norms, the implementation of legal prescriptions and prompt people to enter into legal communication, to act lawfully without violating the law. The study of this problem is not only an urgent task of the theory of law and legal practice but also is of interest to the legal sociology. In the opinion of V.Y. Sizov, "The mechanism of legal regulation is a combination of all legal and An Acad Bras Cienc (2018) 90 (2)

social resources and institutions that ensure the implementation of the law and the organization of public relations. As it is an organizing system, it is called upon to provide a number of specific functions. Along with the above-mentioned regulation and impact, such functions should include balance and rationality of social relations, preservation of social stability. In other words, this mechanism is designed to provide the most important conditions for the preservation and reproduction of society" (Sizov, 2016). Special legal means in the system of legal activity, as the researchers note, are of particular importance, and their underestimation has a very negative impact on the effectiveness of the mechanism of action of law. The imperfection of special legal means, along with other factors, hampers the implementation of legislative acts. In the legal literature, the problem of legal means and their interrelation with the problem of action of law has not been studied widely enough (Puginsky, 1984). Legal means are considered as "institutional regulations and forms, the use of which activates the power (energy) of law, can contribute to the onset of a real, actual result and gives the desired effect in social life" (Alekseyev, 1982). Legal means characterize the substance of the law, its regulatory power; they express and bear legal energy, instruments for realizing the social value of law. The use of legal means in practice presupposes the use of legal instruments to solve social and economic problems, which always leads to the achievement of an effect in real life" (Alekseyev, 1987). As scientists note, their difference "from the norms and individual prescriptions is that they are not considered alone but with all their properties and connections and mainly with their actively regulative role" (Alekseyev, 1987). Legal means have the following characteristics: 1) legal means is law in its legally proper form, is the "substance" of law, the purpose of which is to achieve its goals and objectives; 2) legal means are universal and provided by the state; 3) it is impossible to ensure social activities without legal means; 4) the use of legal means always entails legal consequences (Goyman, 1992).

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The legal means classification is carried out on various grounds. First, depending on the functions performed, legal means are subdivided into regulatory, protective and law enforcement ones. Regulatory means contribute to the development of social ties and realize the legal potential in action. Protective means are used in case of necessity of interference in public relations and in case of necessity of the interests protection of individuals. Law enforcement means are characterized by the application of state enforcement measures in cases where the achievement of the objectives of law is difficult and the operation of the legal mechanism is under threat. Law enforcement means unite institutions of responsibility, defense, prevention and procedural support (Ardashkin, 1988). Proceeding from the content of law enforcement means, two groups of such means are distinguished: 1) means, which restrain destructive (illegal) activity; 2) means of compulsory stimulation of the constructive activity of obligated persons (Ardashkin, 1988). Secondly, depending on the actors, which use them, legal means are classified as those used by citizens and their organizations, officials, and state bodies. Thirdly, they are distinguished according to branches of the law. Fourth, depending on the formal establishment, they are divided into normative and nonnormative legal means. The first are those that are stated in the regulatory legal acts, the latter are established at the level of the parties to legal relations, or unilaterally. Fifthly, depending on the order of the application of legal means, those means applied by actors independently or through the assistance of law enforcement agencies are singled out. Sixthly, in terms of significance, basic and auxiliary legal means are singled out. The basic ones are used directly by legal persons for the exercise of their rights or rights defense. The auxiliary ones are used for the legal persons’ exercise of their rights and responsibilities,

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including legal instruments, the use of which triggers legal prescriptions. Legal axioms, presumptions, and legal doctrinal ideas are among the auxiliary means (Goyman, 1992). Auxiliary legal means are necessary for the functioning of the mechanism of law. They facilitate the introduction, into the legal system, of auxiliary means, which directly or indirectly regulate people's behavior through the adoption of special regulatory legal acts. In other words, the study of legal means allows us to consider the law in its practical implementation in the conditions of social reality, as an instrument for achieving a certain result in people's activities. Thus, legal means in the mechanism of legal regulation occupy an important place, since they represent a way of constructively solving the problems facing an individual, society and state bodies. It should be noted that more and more attention has been paid to the incentive method of legal regulation. This is quite natural. In our opinion, the urgency of such treatment is due to many reasons: firstly, economic, political and judiciallegal reforms in the Republic of Kazakhstan, the effectiveness of which is directly related to the increase of social and legal activity of members of society; secondly, inadequate theoretical and practical development of the incentive method of legal regulation; thirdly, the need to develop and improve various forms and measures of state incentives that stimulate the lawful behavior of subjects of law. All the above arguments determine the growing need for the further indepth theoretical development of the incentive method of legal regulation. The incentive method plays a huge role in the development of processes to stimulate the activities of legal entities. In our opinion, in any socially useful activity, incentive measures should be given special attention. When analyzing the nature of law and its future, we consciously or unconsciously confronted with the need to study cultural foundations of the legal phenomenon. This allows us to determine the assessment of the entrenchment of law as a normative complex in the social system. Proceeding from this prediction, we decided to address the issue of the relationship between law and culture, the impact of the cultural field on the An Acad Bras Cienc (2018) 90 (2)

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overall law-making and law-realizing processes. If we consider the law in this way, we can see that there is a rule function is to "recovery" in the creation of humane conditions necessary for individual life and society as a whole. Creating the most favorable conditions for life is the demand and essence of progress. Law as the interaction between society and the individual, as a subject of influence on culture, can have not only an immediate but also an indirect character of the action. Thus, for example, media and propaganda, a sociopsychological legal background and a number of other social institutions act as mediated forms. All these factors can be attributed to the category of so-called "subsystems", which have relatively independent structures. It is important to note that each of these subsystems can be invariant, as indeed the law itself, in relation to the structure and direction of social development. The dependence of law on the already existing conditions and circumstances that determine the nature of its own activity, to the same extent, forms the historical nature of law as a subject, and its ability to create new conditions that determine the development of culture, the progress of a society. Legal culture is one of the categories of human values, as the most important result of the general democratic gains of progressive humanity. It becomes an integral component of a civilized, cultural and legal state. Such an understanding of the legal culture allows, in our view, to capture and measure both the entire legal life in general and all its main spheres of activity. CONCLUSION Without delving further into the issues of legal sociology, having defined the main necessary categories and concepts within the framework of the topic of the role of legal acts in legal reality, we can sum up some results on this issue. First of all, it should be noted that the mechanism of legal impact on the consciousness of an individual is a complex and contradictory process. According to M.T. Baimakhanov, "the opinion that only the behavior of a person is affected by the law is incorrect ... because it does not give a correct idea of the consistency and An Acad Bras Cienc (2018) 90 (2)

stage-by-stage nature of such an impact. Meanwhile, the impact of legal prescriptions, like any other external influence on the spiritual world of an individual must be viewed as a single holistic process taking place in a certain sequence and having a number of stages, some of which necessarily precede others. Before a legal prescription materializes in concrete acts of human behavior, it necessarily passes through the prism of the consciousness of an individual, is somehow comprehended, subjected to an appropriate assessment, compared with personal interests and needs and serves as one of the initial factors for making a decision on the choice of this or that behavior option" (Baymakhanov, 1980). Thus, the mechanism of legal regulation is legal means taking the form of an integrated system and aimed at the orderliness of social relations, in accordance with the appointment of the rule of law. A social actor, who functions in the sphere of action of law together with social-legal means and conditions are the integral conditions of the mechanism of action of law. The personal approach seems to be the most important in the modern development of state policy, especially in the field of legal education. REFERENCES ALEKSEYEV S.S. 1982. General theory of law (Vols. 1-2). Moscow: Yuridicheskaya literatura. MARCHENKO M.N. 2000. General theory of statehood and law. Academic course (Vols. 1-2). Moscow. VASILYEV A.M. 1976. Legal categories. Methodological aspects of the development of the category system of the theory of law. Moscow. SHUNDIKOV K.V. 2001. Mechanism of legal regulation: Manual. Saratov. RASSOLOV M.M., LUCHIN V.O., & EBZEYEV B.S. 2004. Theory of statehood and law. Moscow: UNITY-DANA. MATUZOV N.I. & MALKO A.V. 2003. Theory of statehood and law. Moscow. KOMAROV S.A. 2002. General theory of statehood and law in schemes and definitions. Moscow. KHROPANYUK V.N. 2002.Theory of statehood and law. Moscow. BOBYLEV A.I. 1999. Mechanism of legal impact. Gosudarstvo i pravo, No. 5, p. 106. MAMEDOV E.F. 2013. Legal technique and mechanism of legal regulation: concept and correlation. Vestnik IrGTU: gumanitarnyye nauki, No. 7 (78), p. 295.

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DOLGOPOLOVA M.V. 2009. Actual problems of the subject and method of legal regulation (Unpublished doctoral dissertation). Saint Petersburg. TIKHOMIROV Y.A. 2008. Legal regulation: Theory and practice. Moscow: Formula prava. SYRYKH V.M. 1998. Theory of statehood and law. Moscow: Bylina. CHAPCHIKOV S.Y. n.d. Mechanism of legal regulation in the national security of Russia: theoretical and methodological problems. Retrieved from http://www.kniga.com/books/preview_txt.asp?sku= ebooks335493#TOC_IDABCT22 GOYMAN V.I. 1992. Action of law (methodological analysis). Moscow. CHERVONYUK V.I. 2003. Elementary basics of general theory of law. Moscow: Kolos. Nechayeva A.M. 1991. Offenses in the field of personal family relations. Moscow. SIZOV V.Y. 2016. Mechanism of legal regulation as a social and legal category. Bulletin of the Lobachevsky Nizhny Novgorod University, No. 4, p. 164. PUGINSKY B.I. 1984. Civil law means in economic relations. Moscow. ALEKSEYEV S.S. 1987. Legal means: problem statement, concept, classification. Sovetskoye gosudarstvo i pravo, No. 6, p. 16. ALEKSEYEV S.S. 1987. Legal means: problem statement, concept, classification. Sovetskoye gosudarstvo i pravo, No. 6, p. 15. ARDASHKIN V.D. 1988. The theory of law enforcement mechanism. Pravovedeniye, No. 1, pp. 11–14. BAYMAKHANOV M.T. 1980. Constitution of the USSR as a factor in the formation of an active position in life of an individual. In Legal order and legal status of an individual in a developed socialist society in the light of the USSR Constitution of 1977 (Issues of the theory of statehood and law, state and administrative law). Saratov: Publishing house of Saratov University.

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