Volume 03 Issue 12-2023
37
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
37-40
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The theoretical and legal foundations of law creation and the issues of improving its activity and ensuring the strict
execution of legal documents are considered in the article. Also, the concept, essence and opinions of the famous
foreign and local scholars of jurisprudence are discussed.
KEYWORDS
legal creativity, theory, legal framework, legal consciousness, legal culture, legal norms.
INTRODUCTION
It is important to ensure the acceptability, perfection,
popularism and effectiveness of legislation in the
formation of the legal state and civil society. In a word,
the development of the society and the state depends
on the quality of the adopted normative legal
documents. Therefore, improving the process of law
creation, increasing the effectiveness of cooperation
between the legislature and the scientific community
in order to identify and eliminate gaps in the legislation,
and developing reasonable proposals is one of the
urgent issues today.
However, it should be recognized that there are still
problems in terms of harmonizing our national
legislation with international standards and ensuring
the balance between social life and new regulatory
legal documents, preventing collisions in our national
legal system, and increasing the effectiveness of the
application of legal documents on this basis.
In fact, as social relations develop, the need for new
legal norms to regulate them also increases. Today, the
process of law creation is thoroughly regulated, and
Research Article
THEORETICAL AND LEGAL FOUNDATIONS OF LEGAL CREATIVITY
Submission Date:
December 07, 2023,
Accepted Date:
December 12, 2023,
Published Date:
December 17, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue12-07
Utemuratov Makhmut Azhimuratovich
Candidate of legal sciences, professor, Tashkent State Law University, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 03 Issue 12-2023
38
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
37-40
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
the improvement of law creation of local authorities is
becoming one of the urgent issues.
Legal creativity is one of the urgent problems of state
and legal theory. At the same time, the process of law
creation and law formation is one of the most complex
types of state activity. Because law creation is a form
of state activity aimed at creating legal norms,
improving them, changing or canceling them in the
future. It is the process of creation and development as
a single and purposeful system of universally binding
norms that legally regulate social relations and have
the status of official activity on special, establishment.
Development and approval of new legal norms is
considered the most important for legal creativity. In
this, first of all, the defined tasks of state activity are
expressed in law.
Legal creativity, by its essence, implies the
manifestation of the will of the state in relation to the
law, legal instructions of universal importance. At the
current stage of the development of legal creativity,
first of all, the adoption of legal documents by the
people of the country directly through the referendum
or the publication of documents containing legal
norms by the state and other governing bodies is
clearly manifested. In some countries, one of the forms
of law creation is judicial precedent. The importance of
agreements with normative content among different
legal entities is increasing day by day.
It is worth noting that law-making is essentially defined
in many legal literatures in the form of law-making and
norm-making. In our opinion, it is necessary to
distinguish between the concepts of law-making and
law-making, because if law-making means the process
of adopting any normative legal document that
reflects the right, law-making means the process
related to the adoption of laws.
For example, K.N. Dmitrievtsev defined the process of
law creation as follows: "Law creation is the
consideration of generality and particularity in the
creation of legal norms that reflect the current trends
of individual, society and state development by
specially authorized state bodies and officials and in
the interests of all social objects is an activity
expressed in the formation of social, group and
individual legal consciousness for the purpose of
finding an agreement and objectively regulating social
relations of a legal nature" [1; p. 20].
According to Professor Z.M.Islamov, "Legal creation is
a type of state activity, as a result of which the will of
the people rises to the status of law, finds its
expression in the legal norm in a specific source of law"
[2; p. 585] . At this point, it is worth noting that in the
process of law creation, not only laws are created, but
also other types of regulatory legal documents, i.e.,
legal documents, can be created. From this point of
view, we believe that it is appropriate to describe the
process of law creation as law making.
In this regard, legal scholars A.Kh. Saidov and Sh.N.
Kochimov express the following opinions: "Any law is
a result of legal creativity. Legal creativity is a
multifaceted complex social phenomenon, it is the only
means of formation and development of law in state
activities, as a result of which the state order takes the
form of a legal norm. At this point, the authors
emphasize the creation of law as a result of law
creation, and ignore the creation of subordinate
documents, which are a component of this process. It
should be noted that although law-making is
considered the most important, basic form of law-
making, these concepts differ from each other in a
number of features. The analysis of current legal
documents shows that the creation of norms covers
the process from the development of normative legal
documents to their adoption and publication.
Volume 03 Issue 12-2023
39
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
37-40
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
The democratization of the law-making procedure
requires the active participation of parties, public
movements, business organizations, and citizens'
gatherings in the creation of legislation, their initiative,
free, broad and business-like discussions provided for
in the legislation.
However, this process does not mean that no matter
how the law creation process is implemented, it is still
a state activity, a form of the state's domination over
the society. The state creates the main part of legal
norms through its bodies. If such norms are announced
by non-governmental organizations, their law-making
powers are determined by the state [3; pp. 307-308].
Of course, when it comes to state functions, first of all,
it is appropriate to dwell on the forms of their
implementation and, as one of them, law-making or
law-making work, which is one of the manifestations of
state leadership to society. Therefore, regardless of
the state's mission, type, implementation and
organization of state power, law creation is carried out
by the state.
That's why "Legal creation is a process that includes
identification and evaluation of legal needs of society
and the state, formation and adoption of legal acts by
authorized entities in the prescribed manner [4; p. 75].
This definition emphasizes the following important
aspects: 1) understanding, studying and analyzing a
situation or process that requires legal regulation; 2) to
identify the div (subject) authorized to adopt this or
that legal act; 3) choosing the form of the act to be
adopted; 4) preparing, adopting or changing a legal act
within the framework of the relevant procedure. Of
course, these listed aspects are interrelated and a
holistic process.
Аccording to its content, law creation consists in
raising the will of the state to the level of law,
expressing it in the form of general binding legal rules
for all. Legal creation is carried out by various bodies of
the state with appropriate authority. Through the
activity of state power and management (executive)
bodies, the main set of legal norms is created" [5; p. 71].
Legal creativity is such a type of state activity that, as a
result of it, the will of the people rises to the status of
law, finds its expression in a legal norm, a specific
source of law.
As mentioned above, together with the adoption of
new legal norms, the cancellation and change of
outdated normative legal instructions is also included
in the activity of law creation. At the moment, the level
and culture of law creation, the quality of the
normative legal documents adopted accordingly,
indicate the high level of cultural development and
democracy of the state and society. Norms of natural
law enter into the form of normative documents by
means of legal creativity and turn into positive
(positive) law, i.e., a law that exists in the form of law.
Political and legal reforms, reform and modernization
of society, the development of democracy, the
strengthening of the legal order, the level of
development of legal culture and consciousness in
society, the correct understanding and effective use of
each person's rights and freedoms, the conscientious
fulfillment of obligations and is determined by the
basis of the law in its activities. On the other hand, if
the opposite of these situations happens, the negative
influence of legal nihilism and legal idealism will
undoubtedly arise in terms of modernization of the
process of norm creation, ensuring the strict execution
of legal documents. That is why the goals set in the
second priority direction of the development strategy
of New Uzbekistan for 2022-2026 called "Making the
principles of justice and the rule of law in our country
the most basic and necessary condition for
Volume 03 Issue 12-2023
40
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
12
Pages:
37-40
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
development" are relevant as they are dedicated to
these issues [6; 22-b].
Summing up from the above, in order to effectively
influence social relations, modernize the process of
law
creation
in
society,
ensure
the
strict
implementation
of
legislation,
raise
legal
consciousness and legal culture, inform the
population, especially young people, about the socio-
economic reforms being implemented in our country,
adopted legal documents and state programs.
formation of a system of consistent transmission of
content and essence, wide promotion of the ideas of
maintaining a balance between personal interests and
the interests of society, as well as state authorities and
management bodies, including strengthening the
mutual cooperation of law enforcement agencies and
civil society institutions in the implementation of
targeted legal propaganda and in-depth research of
the scientific basis of raising legal awareness and legal
culture among the population, are of great importance
in raising legal awareness and culture in the society.
REFERENCES
1.
Dmitrievtsev K.N. Protsess pravotvorchestva v
Rossiyskoy Federatsii Autoref. dis. sugar walk
science N. Novgorod, 1994. P.20.
2.
Islamov Z.M. Theory of state and law. - Tashkent:
Adolat, 2007. - B.585.
3.
Problemy obshchey teorii prava i gosudarstva. M.,
"Norma", 2002, pp. 307-308.
4.
Polenina S.V. Legislation v Rossiyskoy Federatsii. -
M., 1996.- P.75.
5.
Odilkoriev H., Tulteev T., Muhamedov O'.
Bicameral parliament. T., Academy of Ministry of
Internal Affairs of the Republic of Uzbekistan,
2004, p. 71.
6.
National database of legislative information,
29.01.2022, No. 06/22/60/0082
