Правовой эксперимент и правотворческий опыт как специальные модели правового регулирования: техника, практика, пределы

Abstract

Introduction. The article is devoted to the general theoretical analysis and the correlation between the phenomena «legal experiment» and «law-making experience». The author makes and argues a hypothesis about the dialectical connection of experimentation and empirical approach within the framework of law-making and law enforcement processes, expressed in the elements of their unity, difference, interaction and existing contradictions. The aim: to make up for the absence in legal science and practice of well shaped idea of the experimentation technologies application and the introduction of empirically obtained data in the framework of law-making and law enforcement; to identify their characteristics and specify risks caused by the lack of methodology for conducting and evaluating the results. Methodology. A variety of scientific knowledge tools is used, the main ones being the dialectical method, as well as the formal-legal approach carried out for the analysis and interpretation of the norms of legislation, judicial and other law enforcement practices. Results. Substantive and meaningful consideration of the legal experiment and legal experience was carried out, both from the standpoint of the doctrine of law and modern law enforcement practice and legislation. The analysis of general scientific and reference literature, current normative legal acts and official law enforcement documents showed that the legal experiment is based on the establishment of exemptions and (or) additions to the general command of power, is accessory to the main legal regulation. When establishing the elements of similarity and difference of legal experiment and law-making experience, aspects of their interaction and existing contradictions, their independent categorical and institutional nature is proved, specific qualities are highlighted. Conclusion. In legal doctrine, law enforcement practice and legislative system, it is necessary to clearly distinguish the understanding and implementation of legal experiments and the application of experience in law-making by: defining the method of their organization and conduct, developing algorithms for the creation of an experimental legal norm, establishing the design of the mechanism for implementation of legal experience, as well as methods for predicting the results of trial legal regulations. The steps taken should contribute not only to increasing the effectiveness of legal regulation, but also to reducing social and economic losses arising from the hasty legal intermediation of non-standard social relations, unsuccessful law-making steps, as well as reducing the risks of tentative legal requirements.