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­­­Power-conferring normative Regimes and the Coerciveness of Law in the Late Modernity

Priority areas of development: law
2017
The project has been carried out as part of the HSE Program of Fundamental Studies.

Goal of research: Formulation of theoretical model of permissible regulation; analysis of its correlation with law obligation, mandatory nature and compulsoriness.

Methodology:

Alternative methodologies have been used in the investigation. It is based on several reasons. Firstly, it is necessary to reconstruct theoretically difficult cooperation between various societal systems. Therefore, it is impossible to be limited only by the literature in the concrete sphere. Secondly, the issue of law legitimacy and normativity, interaction of permissibility and compulsoriness is interdisciplinary.

The following methods have been used in the investigation:

  • traditional legal methods, including:

a) classical legal doctrinal method, that is applied in the analysis of national legal systems’ content;

 b) comparative legal method, that is applied in the comparative analysis of national legal systems;

  • theory of rational choice, that is applied in the analysis of legal norms economic efficiency, institutes and law-enforcement consequences;
  • games theory, that is applied in the analysis of cooperation between economic, political and legal systems;
  • theory of language games (late-Witgenshtein), post-structural methodology of deconstruction, that is applied in the assessment of legal norms certainty;
  • method of rational reconstruction of science development in the concrete sphere, that is applied in the analysis of the internal logic of science development. It allows enumerating issues and the concepts’ content.      

Empirical base of research: official publications of legal acts, databases of legal acts and other legal information; policy documents; resolutions of Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitrazh Court of the Russian Federation, its letters and explanatory notes, including case law analysis and review (published in the official courts’ publications or in the databases of legal information); consultations with experts; public sources of information concerned with issues of legal regulation in various spheres. Also empirical information described in the special literature has been used in the investigation.    

Results of research:

The following results have been obtained:

1. In theory:

  • the analysis of base hypothesis that permissible regimes don’t have compulsoriness as it is typical for the regimes of obligations and prohibitions;
  • the definition of permissibility concept as the method of legal regulation;
  • the analysis of correlation between law permissibility and compulsoriness;
  • the analysis of hypothesis that permissibility plays a crucial role in the structure of rights; the existence of rights without permissibility is impossible;
  • the description of the contemporary legal compulsoriness theory.

2. In methodology:

  • the analysis of heuristic opportunities and limits of contra factual situations and mental experiments analysis, that is widely used in the modern discussion of compulsoriness role in legal regulation;
  • the analysis of problems and opportunities concerned with application of traditional for legal analytical philosophy method of “conceptual analysis”;
  • the analysis of the role of empirical generalizations and statistics in the theoretical investigation of legal structures.

3. New empirical knowledge:

  • opportunities connected with the application of generated conceptual instruments for the analysis if non-state normative regimes (the purpose is creation of algorithm of cooperation between non-state and state regimes);
  • the role of empirical generalizations and statistics in the theoretical investigation of legal structures.

The investigation is dedicated to two fundamental legal issues: legal right, its structure and peremptory force and correlation between imperative and permissive norms in private law.

The following conclusions about legal rights have been made:

a) Coercive character of legal rights is the necessary element for distinction between legal and moral rights. It is the appearance of the abstract characteristics of law itself.

b) The concept of coercion has been developed for a long time. Two major approaches can be distinguished. Firstly, theory of imperatives reduces legal regulation to coercion only, excluding permissive mechanisms. Secondly, peremptory force of legal rights allow to make a distinction between legal and other regulators.

c) The concept of peremptory force has not unambiguous meaning in Russian language. Moreover, the concept itself can not have the absolute value as legal science recognizes the uncertainty of law.

d) The classical will theory recognizes the internal complexity of rights. It is connected with total and absolute will supremacy in the sphere of permissive actions.

e) Complication of social life leads to the appearance on new legal constructions. On its basis new concepts that deny internal complexity of legal rights have been formulated. The most famous one is theory of W. Hohfeld based on the thesis that the existence of legal right doesn’t mean the corresponding obligation of other person.

f) Critics of Hohfeld’s theory proved again that internal complexity of right is the necessary element even in the case of claim-right or liberty.

g) The significant contribution in legal science is the advantage of theory of imperatives. It denies the permissive elements as the extra phenomenon for legal mechanism. Nevertheless, its provisions are not applicable to the contemporary national legal systems. Monopoly of right-holder doesn’t provide the prohibition for all other people, but provide the irrelevancy of behaviour.

h) Thus, it is necessary to point out that a major part of legal theories recognize the coercive character of legal rights.

The analysis of imperative and permissive norms’ correlations provides the following conclusions.

Russian judicial practice supports the evidence that imperative presumption acts in the sphere of contractual law. However, the importance of the presumption can be “destroyed” by a number of reasons.

First of all, the nature of contractual law is the will of parties. Therefore, the expansion of imperative norms’ action leads to economic inefficiency. The other reason is unjustified contracts invalidation on the basis of article 168 of Russian Civil Code (contradiction to legal act).

Hence, it would be appropriate to begin implementation of the opposite presumption (presumption of permissive norms). It is possible to implement it in a number of ways, including legislative recognition or implementation by means of judicial practice.

Level of implementation,  recommendations on implementation or outcomes of the implementation of the results

Results of the investigation can be applied in the following spheres:

  • Russian and international applied investigations in the sphere of legal efficiency assessment;
  • law-making work of the Government of the Russian Federation, including enhancement of law-making quality;
  • law-enforcement practice and monitoring of legal acts efficiency;
  • specialists trainings in universities;
  • legal specialists upgrade qualifications.

Potential consumers of the results are governmental bodies, authors of legal acts, lecturers in the law sphere, scientific workers. 

Publications:


Законность: теория и практика / Отв. ред.: Ю. А. Тихомиров, Н. В. Субанова. 3-ье издание. М. : Институт законодательства и сравнительного правоведения при Правительстве РФ, 2017.
Тихомиров Ю. А., Головина А., Пуляева Е., Черемисинова М. Правовые границы на земле, в воздухе и виртуальном пространстве // Право и экономика. 2017. № 8. С. 5-16.
Тихомиров Ю. А. Юридические конфликты: механизм анализа и преодоления // Административное право и процесс. 2017. № 2. С. 9-13.
Tikhomirov Y. A., Khabrieva T. Comparativistics: The Experience of Modern Russia, in: Comparing Comparative Law. Geneva, Zürich : Schulthess Editions Romandes, 2017. P. 99-106.
Тихомиров Ю. А. Юридическая доктрина и вызовы социально-экономической практики // В кн.: XVII Апрельская международная научная конференция по проблемам развития экономики и общества: в 4 кн. / Отв. ред.: Е. Г. Ясин. Кн. 1. М. : Издательский дом НИУ ВШЭ, 2017. С. 235-242.
Tretyakov S. V. Review of the Force of Law // Russian Law Journal. 2018
Tretyakov S. V. The Society-of-Angels Argument and the Modern Legal Positivism // Russian Law Journal. 2018
Юридический конфликт / Отв. ред.: Ю. А. Тихомиров. М. : ИНФРА-М, 2017.
Tikhomirov Y. A., Churakov V. Legal Tendencies in Russia / NRU Higher School of Economics. Series LAW "Law". 2017.
Тихомиров Ю. А. Государство в мировом сообществе // Общественные науки и современность. 2017. № 3. С. 15-25.
Churakov V. Regional Practice of Regulatory Impact Assessment // Журнал зарубежного законодательства и сравнительного правоведения. 2017. No. 6. P. 24-29. doi