РАЗВИТИЕ ПРАВА ВОПРЕКИ ЗАКОНУ (CONTRA LEGEM) НА ОСНОВЕ ПРАВОВОЙ МАКСИМЫ «ЗАКОН НЕ ТРЕБУЕТ НЕВОЗМОЖНОГО»

Abstract

Introduction: the article is devoted to the issues of releasing a person from liability or from per-forming an obligation contrary to the law on the basis of the legal maxim ‘lex non cogit ad impossibilia’ (the law never requires impossibilities). Purpose: to show that the maxim ‘lex non cogit ad impossibilia’ is applicable not only in private but also in public law. It allows the law enforcer to act contrary to the law in a situation of impossibility. Methods: comparison, description, interpretation; theoretical methods offormal and dialectical logic; special scientific methods such as legal-dogmatic, etc. Results: there are three types of impossibility: physical impossibility, ‘practical’ impossibility, and legal impossibility. There is also a distinction between a priori impossibility and actual impossibility. Classification of these types of impossibility is of practical importance. If thelaw does not establish that impossibility is a legal ground for exemption from a duty or liability, then, in this case, the law enforcer acts contrary to the law. In situations of impossibility, there are two ways of legally justifying the release of a person from per-forming an obligation or from liability contrary to the law: through establishing a ‘reasonable exception’ not provided for by law in a law enforcement act or through using the doctrine of the development of law contrary to the law (contra legem). The most acceptable way to justify the position of releasing a person from the performance of a duty or from liability on the basis of the legal maxim ‘lex non cogit ad impossibilia’ is the mentioned doctrine. In this case, law develops contrary to the law (contra legem), but in accordance with the maxim ‘lex non cogit ad impossibilia’, which makes the actions of the law enforc-er legitimate. Conclusions: the law enforcer, guided by the doctrine of the development of law contra le-gem, may lawfully act contrary to the law on the basis of the legal maxim ‘lex non cogit ad impossibilia’, relieving a person from a duty or liability. The doctrine of actions contrary to the law based on this max-im can create a fertile ground for political authorities to abuse electoral processes; therefore, in order to prevent such abuses, the following conditions must be met: first, ‘practical’ impossibility or legal impos-sibility cannot be a legal ground for postponing (canceling) elections. Secondly, the doctrine of actions against the law based on the ‘lex non cogit ad impossibilia’ can be applied by judicial authorities or under their control.