A thesis submitted for the degree of Doctor of Philosophy in specialty 081 – Law. – International Humanitirian University, Odesa, 2021.
The thesis contains the results of a comprehensive general theoretical study of the unofficial law as an integral element of the legal life of society. The thesis materials summarize the analysis of scientific works related to the problem, regulations, international legal treaties, daily human activities in the legal field, statistical and analytical information.
The thesis emphasizes that the issue of law, as a fundamental category, does not lose relevance in the scientific community, but the dichotomy "official law" - "unofficial law" in the post-Soviet space is insufficiently studied. Some issues related to unofficial (non-state, informal, shadow) law are raised in the works of such researchers as V.M. Baranov, S.V. Biryukov, V.V. Zavalnyuk, G.M. Lanova, O.O. Uvarova, Yu. O. Tikhomirov, O.M. Trikoz and others. But unofficial law has not yet been the subject of thesis research.
It is justified that the basis of the research of unofficial law is the concept of legal pluralism – a leading idea of the contemporary general jurisprudence. The emerging and development of this concept in the sociology of law, legal anthropology and legal ethnology have been analysed. It is proved that the pluralistic approach to law makes it possible to understand law as a multidimensional phenomenon that has various forms of its existence, in particular, the form of the unofficial law.
Academic background of unofficial (non-state) law in foreign and national jurisprudence has been characterized. It is revealed that the research of non-state law in the Western countries began in the XX century and was accompanied by heated discussions. The result of those discussions is the most scholars’ conviction that the unofficial law is a part of the real law and it exists and functions in various spheres of social life. Instead, in the national jurisprudence, the unofficial law currently is a
subject of few studies. For the most part, some aspects of this problem are considered through the prism of the concept of non-state legal regulation (O.O. Uvarova), within the framework of legal anthropology (V.V. Zavalnyuk), in the connection with the formation of unofficial law and order (A.F. Kryzhanovsky, O.V. Kryzhanovska), etc. Russian scholars pay much attention to shadow law as a kind of negative unofficial law (V.M. Baranov, Y.M. Tikhomirov, O.M. Trikoz, and others).
It is emphasized that the methodology of jurisprudence in its development has gone through three stages - the classical; non-classical; post-classical. Each of them developed its own means of cognition and improved the existing ones. As a result, the modern methodology of jurisprudence is pluralistic, that involves a combination of different methodological approaches, techniques and methods, and human- centred that means primarily comprehension the problem of "human being in law".
For the purpose of the research the author applied basic conceptual approaches (anthropological, axiological, hermeneutic, synergetic, needs-based, dialectical approaches) and a system of methods, including: historic and philosophical, comparative, systematic, functional methods etc.
Basing on the generalization of approaches to the interpretation of the category "legal understanding", it is proposed to consider legal understanding in a broad sense as an intellectual activity aimed at comprehension the essence and content of law, in a narrow sense - a set of knowledge gained as a result of this activity. Different criteria of the typology of legal understanding in contemporary jurisprudence are analysed. The basis of this typology is the traditional triad, that includes natural law, positivist and sociological understanding of law. In the current context they are integrated with the concepts of the postmodern era (anthropological, communicative, value-normative, etc.), that makes it possible to study unofficial law.
The origin and development of ideas about diverse forms of law within the framework of natural law understanding from Antiquity to the present are described. Ancient philosophical and legal thought initiated the understanding of natural law as a manifestation of justice, as an unwritten law in opposition to positive law
(written law). In the Middle Ages the Divine law was recognized as the primary source of law. The contribution of foreign and domestic scientists, philosophers and jurists to the formation of natural-legal understanding is analysed. It has been found that in the current context natural-legal understanding allows to reveal the essence of those legal phenomena which are not endowed with formal properties of the positive law, in particular, unofficial law.
