GENERAL PERMISSIBLE LEGAL REGULATION AS AN INSTANCE OF DISPOSITIVE POSSIBILITIES OF LAW

Abstract

The article clarifies that the characteristic of legal regulation of general permissible type («everything that is not prohibited by the norms of positive law is allowed») depends on which system of building of legal material it can function within. Consequently it is established that such legal regulation as an instrument of person`s social freedom and activity realization essentially corresponds to the phenomenon of dispositiveness of law (i.e. the possibility of subjects of law to organize, regulate their relations independently, to act at their discretion). As well the author establishes the community of «general permissibility» and «dispositiveness» in being ensured by the respective legal method. It goes about the method of autonomy (decentralization), which peculiarity is certain order (character of the grounds) of establishing the legal rights and duties, degree (measure) of the granted rights definiteness and «autonomy of action» of their subjects, forming the legal relations, in particular, on the principle: «everything that is not directly prohibited by the norms of law is allowed». Moreover, the author reveals the same legal instruments due to which the dispositive possibilities of positive law and general permissible legal regulation are expressed. These are the respective principles of legal regulation of the certain sphere of social relations and the norms of law. These principles first of all include the principle of honesty, which belongs to the complex of normative legal means of ensuring the general permissible legal regulation, in particular, its main ideological component – free development of personality, freedom and own discretion in exercising the rights, provided that rights and freedoms of other people are not violated. The same is stated concerning the principles of rationality, freedom of contract, freedom of entrepreneurial activity, which is not prohibited by law. It is found out that the most normative emphasis in the investigated processes is placed on the respective legal norms, which are called the dispositive ones and which are traditionally considered as «the spare variant», «reserve» rule of behavior for those occasions when the subjects of law have not used the granted possibility to establish the other order of legal regulation. However, due to the general permissible mechanism the amount of dispositive norms is being extended and the norms, which establish the limits of allowed behavior of subjects, become part of it. Such norms are usually realized with the use of the wordings «independently», «by all the means, which are not prohibited by law», «in the other directions, which are not prohibited by legislation», «for meeting the political, economic, social, cultural and the other interests with the exception of restrictions established by law in the interests of…». Thus, the analysis of the investigated regulation should be provided within and due to the dispositive resources of law.