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COMPARATIVE STADIES JURISPRUDENCE (12.00.00)
PROPOSITION OF LAW: ITS CONCEPT, PROPERTIES, CLASSIFICATION AND STRUCTURE
DOI: http://dx.doi.org/10.14420/en.2015.4.1
Svetlana Boshno, Doctor of Law, Professor, Head of Department, Russian Academy of National Economy and Public Service at the President of the Russian Federation, e-mail: boshno@yandex.ru.
Abstract. The article deals with the definition, concept, properties, classification
and structure of the proposition (rule) of law as a compulsory commandments expressed in the form of powerful prescription that is regulating social relations. Here is indicated that the proposition of law have such specific features as normativity, systemacy, general obligatoriness, formal distinctness and representative binding nature. They also have a special structure and provided with the coercive power of the state. A classification of the law made on various grounds. Initial legal propositions and rules of behavior, general and specific, mandatory and discretionary propositions allocated and further fractional division of propositions carried out. The structure of the legal norms and methods of their presentation in legal acts also described.
Keywords: forms of law, proposition of law, rule of law, legal norm, regulatory,
universal validity of the law, definition of the proposition of law, the structure of the proposition of law, the original rules of law, the rules of behavior, fundamental rules, principal rules, attributive-setting rules, definition rules.
1. The concept of the proposition of law
The proposition (rule) of law (legal norm) is a special kind of social norms. Like other social norms, for example, moral, ethical, etc., legal propositions govern social relations, organize them, and offer the option of socially useful behavior that is supported by measures of social coercion. As a specific regulator
of social relations, the law at the same time is their additional controller, it occurs when the other regulators for various reasons cannot effectively regulate the corresponding relations.
The specific scope of regulation of the law implies that it creates proper legal phenomena, institutions, definitions. Thus, the legislation creates legal subjects, gives public authorities their functions, establishes registration and judicial procedures, forms, documents, etc. Law is based on the morals, rules of religion and human society, ethics, etiquette. The proposition of law may contain provisions that are identical to the requirements of other regulatory systems, but as soon as it becomes legal injunction, the content takes the form of corresponding propositions of legal technique, and it is already functioning as a legal proposition.
The proposition of law - is an obligatory decree, expressed as a powerholding order governing public relations and has the following specific features that distinguish them from other social rules, such as: normativity, systemacy, general obligatoriness, formal distinctness and representative-binding nature. They also have a special structure and provided with the coercive power of the state.
A specific property of the propositions of law is their normativity. Normativity reflects typical social processes and connections, is a consequence of their frequency of occurrence, and shows the totality of social relations. Universality means the maximum extent of social relations, their types and variants among members of society. Normativity also implies commitment and universality of the legal regulations. Manifestation of normativity is the lack of personalization of law recipients.
The proposition of law has representative-binding nature. This means that the law regulate social relations by simultaneously providing their members of certain subjective rights and with their respective responsibilities. The proposition of law contains a prescription to perform certain actions, the prohibition of any actions, offer to take advantage of the choice of any standing. As a proposition, the content of legal norms affect the rights and obligations of the several subjects, although the text could get a clear description of the behavior of only one person. The peculiarity of the proposition of law is that it involves the interaction of authority and obligation to face. If the proposition of law gives powers to anyone, then at the same time to another person with appropriate responsibilities. Only this model is able to provide effective legal regulation.
The proposition of law ensured by coercive power of the state and
guaranteed for violations by the state. Such a necessary element of a legal norm as a sanction has undesirable consequences for offenders. The implementation of sanctions, as a rule, comes to be by the state. Rule of state means that the state with respect to the legal norm is the guarantor of its proper implementation. For example, people make their own decisions, marry, and make a real estate transaction. However, for a reliable legal guarantee registration of these acts
comes to be by the state. This organizational part of the state helps its legal subjects in their legitimate activities.
The proposition of law contained in the forms of law, its sources. Traditionally noted that the propositions of law established in public documents -normative legal acts. However, rules of law may be contained in the regulatory agreements, precedents, legal customs, and the universally recognized principles of international law and in other forms.
An important feature of the proposition of law is a systemacy. The proposition of law is part of the general legal system. The proposition of law does not exist in isolation as a self-sufficient rule; it is a part of the Institute of Law, of the relevant area of law. The proposition of law is complex systemic relationships with the rules of their Institute and other institutions, and even branches. Often, for the realization of a legal norm is necessary to examine all of its relationships in the legal system. A single proposition of law cannot properly perform its task, that is - to organize social relations.
The obligation of executing means that the requirements of the law must strictly adhered to by all participants in public relations. The degree of binding rules depends on the kind of the rule. If the proposition of law is mandatory and contains a prohibition or bind, it is mandatory and requires the subject of law of the inaction or action. If the proposition of law is dispositive, it is optional. The subject of law independently decides whether to enter into the particular legal relationship or not. For example, a person makes a decision on applying for a job. The right to work is not the obligation; it is exactly the right. However, if the subject comes into discretionary right attitude, he becomes a participant of mandatory legal relations, i.e. those in which there will be restrictions and obliging. Therefore, applying for a job requires submission to the propositions of the internal labor regulations.
The formal definition of the proposition of law means that it presented in accordance with the requirements of legal technique. The purpose of all the requirements is to provide accurate, clear, simple, understandable propositions. The proposition of law must be exhaustive, i.e. accurately and specifically, to formulate an algorithm of lawful behavior. This distinguishes it from other social norms (e.g., moral), which can be shaped, ambiguous, vague and even take the form of verse fables or proverbs. The proposition of law must formally defined for all subjects of law to understand and apply it consistently.
The proposition of law stand out from other social norms of their special structure. They consist of a hypothesis, dispositions and sanctions and have a logical formula: «If ... then ... or ...». Some social norms cannot have sanctions, i.e. may not need the authority of force and implemented under the pressure of authority.
The norm is not the same with the article of the normative legal act. The proposition of law is an abstract concept, the result of a logical development of legislation, whereas normative legal acts consist of articles, items, paragraphs. It is important to single out the proposition of law from the text of a normative legal act correctly.
2. Normativity as a property of law
Normativity (regulativeness) means that legal regulations uncertain about who they extend the action, what is their duration, the number of times they are used (and if used at all) and no association with any legal relationship. It manifests itself in the fact that the rules of law extends to the impersonal range of subjects, i.e. addressed to all and no one personally.
Normativity manifested in the duration of the law. Action of laws and regulations in time is an important characteristic. The propositions of law predicted for an indefinite duration, which corresponds to their essence and nature. The uncertainty of the duration of action means that the proposition of law is valid until its abrogation. Temporary action of laws and regulations, established at its adoption is an exceptional measure. Exceptions can have many causes, so there are laws passed for a certain period, for example, the law on the budget adopted for one year. However, if the law adopted for an indefinite period and very soon abolished, it harms not only that specific regulations and legislation as a whole, but harms even legal consciousness.
An important manifestation of normativity is a quantitative uncertainty of the application of the proposition of law. It means that the law does not matter how many times it is used or is not used. Thus, the manifestation of normativity is of paramount importance for the separation of regulatory requirements on the individual those. Regulatory requirements are for an indefinite number of times referring to them, that does not affect their validity. Individual requirements apply only once and then lose their force. Even for some of the same participants, operating under very similar circumstances, the previously issued individual act is not valid and does not apply.
Normativity manifests itself in the absence of the proposition of law interconnection with any legal relationship. The proposition of law does not depend on whether the specific relationship arise, modify or terminate. The proposition of law is a general universal rule that performs as the measure of all the relevant legal relationships.
Regulatory prescriptions formed by abstracting from concrete social relations or incidents. Typing consists in frequency of occurrence, as well as in the sustainability of current practice. A single event (incident) is possible, but there is reason to assume it repeatability in the future.
Relations in the public sphere, as a rule, cannot occur without prior arrangement, as public authorities and local governments created only based on normative legal act, which describes the procedure for their formation, operation and competence. Accordingly, at the stage of design and development of appropriate public-law rules the legislator foresees typicality of created legal models of social relations.
3. Classification of the propositions law
The proposition of law are very diverse, and it is necessary to divide them into groups to organize and the possibility of their analysis and application. Such a classification may be made on various grounds. By functional role in the mechanism of legal regulation of the original, they are initial legal norms and standards of behavior. The hallmark of the initial propositions is their general character, and a high degree of abstraction. They divided into fundamentals norms, principles norms, attributive-setting norms, definition norms.
Fundamentals norms are fixing the foundations of the state system, the basis of socio-economic, political and public life of society.
Principles norms are legal regulations, expressing and fixing principles of law. For example, the Constitution of the Russian Federation secures the principle of the presumption of innocence, acclaiming that everyone charged with a criminal offense shall be presumed innocent until his guilt is proved as provided by federal law and established by a valid court sentence (Art. 49). The accused is not obliged to prove his innocence.
Attributive-setting norms are regulations that determine the goals, objectives, individual branches of law, legal institutions, subject, form and means of regulation. Current legislation is replete with general requirements. Almost every law, especially Code, contains provisions embodying the goals and objectives of relevant areas of law. For example, article 2 of the Criminal Code establishes the tasks of relevant branch of legislation: to protect against criminal attacks the rights and freedoms of man and citizen, property, public order and public safety, the environment, the constitutional system of the Russian Federation; to ensure peace and security of mankind, as well as the prevention of crimes.
Definition norms are prescriptions containing a complete or partial legal definition of categories and concepts. Therefore, in the Civil Code of the Russian Federation formulated such terms as transaction, the name of a citizen or a legal person and many others. The same article 14 of the Criminal Code of the Russian Federation is formulated definition of the crime: a crime is culpable committed socially dangerous act prohibited by the Criminal Code under threat of punishment.
Norms-rules of behavior indicate the mutual rights and obligations of the subjects, the conditions of their implementation, the type and extent of the reaction of the state in relation to the offender. Because of purposeful actions of regulatory norms-rules of behavior against any actual social relationship this social relationship acquires legal character and its members become the subjects of this relationship. Thus, original laws receive the logical development and materialization in the norms-rules of behavior that are not uniform and divided into types on different grounds.
According to the degree of generality and scope (field) of action, rules of law divided into general and special. General propositions are a prescription that are inherent in the common part of any branch of law and apply to all or most of the institutions of the relevant field of law. General propositions may be not
only sectorial but also cross-sectorial value. For example, the propositions that characterize such a large interdisciplinary Institute, as the institution of property, are general in nature. Special propositions are prescriptions that relate to some of the institutions of a particular field of law and regulate a certain kind of generic social relations, taking into account their specific circumstances, specificity, specific conditions, etc. Special propositions detail the general propositions, correct temporal and spatial conditions of their implementation, and the legal ways of influencing behavior of the individual.
On the subject of legal regulation (by branch division) it is possible to distinguish the propositions of civil, criminal, labor and other branches of law. In turn, branch rules are divided into substantive and procedural, and the difference between them is that the first answer to the question «what» and the second -the «how». Substantive rules directly aimed at regulating social relations. With their help, we describe the properties of items, objects and subjects of legal relations. Rules of procedure are organizing, procedural and managerial. They regulate the procedure, forms and methods of implementation of the substantive law. With respect to the substantive rules, procedural propositions are always derivative and secondary.
According to the method of legal regulation mandatory and residuary (optional) propositions are distinguished. Mandatory propositions are categorical, strictly obligatory, non-deviative and not allowing other interpretation. For example, initial rules are always mandatory. Mandatory rules are such that contain word «shall», «should», «must». They categorically formulate the only option of behavior. Residuary rules prescribe behavior, but the actors are able to provide within the legal means to regulate relations in its sole discretion. Parties have the opportunity to agree themselves on their mutual rights and obligations. If they do not take advantage of what is permitted, they prescribed a mandatory option behavior. Residuary rules, in turn, divided into incentive (encouraging) and recommendatory. They may be such, if the legislator is interested in the subject's behavior and trying to stimulate and direct their activities.
Incentive rules are provision for the granting of certain incentives for approved by society and the state useful option for them behavior of subjects. This behavior may be expressed in good faith performance of their legal and social obligations or to achieve results that exceed the usual requirements. Incentive propositions of law have a stimulating effect on a wide variety of activities. The peculiarity of their content is primarily in merits contained therein. Merit established for good faith and accurate fulfilment by subjects legal and social duties incumbent upon them, as well as participants of social relations executing of actions not stipulated by legal norm but useful for the state and overcoming common demand.
Recommendatory rules established options of desirable from the state's point of view functioning social relations.
According to direction wording distinguished authorizationary, binding and prohibitive rules. Authorizationary (permissive) rules give a subject the right of
execution of fixed by law positive actions. Present rules act with words «justified», «may», «have the right». These norms indicate permission or allowance the right to choose option of good behavior to the subjects of social relations. Binding rules fix the duty to execute definite positive actions. Positive bind expressed in the text of the rule with words «shall», «should», «must». Prohibitive rules require refrain from the named therein behavior, which the law recognizes as the offense. The purpose of prohibiting norms is to prevent possible undesirable actions that may cause harm to the public interest.
Classification of the proposition of law is possible also for other grounds.
4. The structure of the legal norm
The structure of any proposition of law constitutes the unity of its constituent elements. However, the nature of these elements, their number, location, method of communication and purpose depend on the type of legal norms. Therefore It should distinguish between the structure of the starting (initial, constituent) norms and norms-rules of behavior. The logical structure of norms-rules of behavior is recreated mentally by the formula: «If ... then ... else (otherwise) ...» After the «if» is a hypothesis, «that» is a disposition, «else» is a sanction. To recreate the logical structure, except for the requirements and the propositions of logic, you need a good knowledge of the law, legal technology, system communications rules of law and their mechanism of action. Here is an example of the text of the law (Art. 173 of the Civil Code) as the proposition of law: «If the transaction is made by a legal entity (the hypothesis), it shall comply with the objectives of the activities, certainly limited in its constituent documents (disposition), otherwise it can be recognized by the court as invalid (sanctions)».
The logical structure of the norm is a logically assignable general rule that embodies the organic link between the regulatory requirements and has a complete set of properties, revealing their state-imperious, regulatory nature. In accordance with this structure legal norm is allocated. The logical structure of the norm is composed of three elements: a hypothesis, dispositions and sanctions.
Hypothesis is an element of the rule of law, pointing to the life circumstances under which this rule of law operates. Through the hypothesis an abstract version of behavior is tied to specific life case, subject, time, and place. Generalization of social situations leads to the formation of patterns of behavior, and each of these situations breathes life into a rule of behavior, transfers it to the level of the individual case, giving it a substantive character. In the framework of the hypothesis, dialectical interaction between general and individual is carried out. Stipulated by hypothesis circumstances may concern a subject of law (age, education), the time of committing the act (during the war). The hypothesis can describe the conscious volitional behavior of the subject of law (conclusion of the contract, participation in elections), and can bind action of the rule to events that do not depend on the will of the people (hurricanes and other natural disasters).
Various propositions of law may be conditioned by one or more life circumstances. In connection with this hypotheses are simple, complex, alternative. Simple hypothesis provides guidance on one thing, which is connected with the implementation of norm in the legal relationship. Complex hypothesis communicates simultaneously with several circumstances. In the hypothesis may be enumerated circumstances, each of which can serve as a basis in the event of legal relationship, in which case it will be alternative.
Disposition is an element of the proposition of law, establishing the rights and duties of present relations. The easiest way to formulate the disposition of the propositions is to specify in it permitted by and prohibited actions (inactions) without describing their symptoms. In this way, the propositions with a simple disposition created. This is the case when it comes to the well-known and self-evident actions (e.g., murder). In other cases, when you cannot confine the name of the prescribed action because of its lesser known or contradictory, regulations are published with the narrative disposition. In this case, the disposition formulated the essential features of the action (for example, a description of theft as a secret stealing of property).
The behavior of subjects in the legal relations may be secured in the following ways: a) providing opportunities; b) obligation to perform any action; c) prohibition of certain behavior.
Representative disposition describes the powers of a subject of law. He can realize them by his own initiative, i.e. depending on his interest and capabilities. Scale of powers is large and multifaceted and may include his conscious political, personal and other rights. In characterizing this type of disposition representatively binding nature of the law should be considered. The provisions of the law may be implemented with imposing to another person any duty. Appropriate disposition may be binding, i.e., requiring certain behavior in the form of action to be performed by the subject. Inaction of the subject of law is a rule of behavior in prohibiting dispositions. These dispositions are characteristic of norms of administrative and criminal law.
Dispositions can, with varying degrees of accuracy, to set the behavior of subjects. If the only option of behavior provided, such disposition is simple. In the complex disposition several acts of behavior of subjects established, for example, the action consists of several stages. If the subject of law has the ability to select from several options of behavior, the disposition is alternative.
Sanction is an element of the rule of law, which establishes the legal consequences for violating the rule of behavior referred to disposition. Depending on the degree of certainty, they are divided into the following types: a) relatively definite (they specified upper and lower limit of punishment); b) absolutely definite (contain well-defined punishment); c) alternative (allows you to make a choice) sanctions.
Depending on the purpose of the application sanctions are divided into law restorative and punitive (penal). The purpose of law restorative sanction is to reduce the impact of the negative impact of the offense, to restore the violated
right. Punitive (penal) sanctions have two interconnected goals. On the one hand, the offender must undergo the inconvenience of deprivation or restrictions. On the other hand, he must realize the harm of illegal behavior and return to lawful behavior. Punitive sanctions should serve also educational purposes. The structure of the starting (constituent) rule of law differs from that of rule of behavior. It makes no sense to look for hypothesis, disposition or sanction in a starting (constituent) norm, because they have different structural elements.
5. The method of wording the proposition of law in the legal acts
Forms of legislation, primarily laws, contain propositions of law, but set out according rules of the language, rules of formal logic. They do not have the structure of the proposition of law. There is no proposition of law in the legal reality. They must be recreated from the articles of normative legal acts, using all methods of learning, including interpretation. Articles of law explained as part of the text, consistently describing a specific behavior. The abundance of «ifs» in the texts of normative legal acts may mislead. But these «ifs» should not be confused with the beginning of the hypothesis. Articles of laws allocate points, paragraphs, parts, but these elements do not coincide with the proposition of law. Often elements of the proposition of law scattered not only in different parts of the law, but in different laws and even in different normative legal acts. The most common variant is the next: a hypothesis and disposition are located in one article, and sanction is in another article or in other act. Such a ratio is predetermined with logical structure of the proposition of law.
There are two basic ways of presenting the proposition of law in the articles of legal normative acts: direct and indirect, which, in turn, is divided into referential and blanket. The direct method involves the presence of all three elements in one article. Direct presentation is rather exception than the rule, as in it proposition of law and article of the law coincide. This is an ideal position for all subjects of law, because such a rule is easy to find and convenient to use. Examples of direct method of presentation are available in civil law (Art. 167 of the Civil Code). Indirect method of presentation means that not all elements of the norm focused in the article of legal normative act. As a rule, there is no sanction or hypothesis. This is because the re-establishment of the proposition of law always begins with the disposition, which contains a rule of behavior.
Distinguished referential and blanket types of indirect method of presentation, which differ in the degree of precision guidance in finding the missing elements of the proposition of law. Referential method takes place in cases when the text of the act does not contain all the elements of the legal norm and there is a definite reference to other articles of the act, where the other elements of the proposition of law are. Referential method comprising the exact indication of the article, part, the point at which there is a missing piece of the proposition of law. For example, Article 26 of the Civil Code installed legal capacity of persons aged 14 to 18 years and at the same time gives a reference
to paragraph 2 art. 28 of the Civil Code, which establishes the amount of the civil rights of minors. Indeed, persons aged from 14 to 18 years old must have the rights of minors. This method is used to save the text legislation, as otherwise would be required to repeat one or more articles of different regulations.
The abundance of examples of reference standards available in the second part of the Civil Code: almost every third article referenced. References themselves differ from one another. There are references between paragraphs of one article. For example, in paragraph 1 of Art. 480 of the Civil Code describes the effects of incomplete transfer of the goods. In paragraph 3 of the same article, given the reference to paragraph 1, whereby the same effects apply to the obligation to transfer the whole set of goods. At the same time the article provides references to other articles: to paragraph 1 article 478, and paragraph 3 article 479.
Less common, but also there are exact references of one law to another. Thus, all four parts of the Civil Code are separate laws passed with a break of several years: the first part - in 1994, the second part - in 1996, part three -in 2001, the fourth part - in 2006. However, the second and third parts have references to the first part. For example, Article 486 provides for the following rule: «If the buyer does not pay of goods transmitted in accordance with the contract of sale, the seller is entitled to demand payment of the goods and the payment of interest in accordance with Article 395 of this Code». This is a reference to the first part, and it follows that the Code itself is considered as a single act.
References in one act on articles, parts, paragraphs of another act are not done. Even if it is possible to give exect sending of, for example, the Constitution of the Russian Federation, is still used idefinite reference. For example, Article 3 of the Civil Code states that, in accordance with the Constitution of the Russian, civil legislation is within the exclusive jurisdiction of the Federation. The exact location of this rule could be given, as to see point «o» Art. 71 of the Constitution of the Russian Federation. However, the reference is given without an exact address.
Blanket method of presentation means that in the article of legal normative act there is indefinite reference to a group of acts, regulations, instructions, which are not defined exactly.
Blanket way means uncertainty, which may be different and touch any element the proposition of law. An example is a blanket statement is in paragraph 1 Art. 428 of the Civil Code: «the Treaty of accession is a contract whose terms are defined in the blank form or other standard form». In this case the uncertainty regards to the disposition, as its content is in the blank forms or other forms.
A feature of the labor legislation is almost complete absence of sanctions, which are concentrated in the single article 192 of the Labor Code «Disciplinary action». Most of this article gives a partial list of sanctions, as it contains a reference blanket «Federal laws, statutes and regulations regarding discipline for certain categories of workers may also provide other disciplinary action». In other articles of the Labor Code (e.g., Art. 66, 138, 189 and others) there
used an undefined sanction-penalty. Specific punishment, i.e., clarification of the sanctions is carried out in the Article 192 of the LC RF.
The widest blanket reference: «Responsibility for violation of this law established criminal, administrative law». Search of elements of the proposition of law in this case becomes limitless, and cjvers covers virtually all legislation. Modern methods of anti-corruption expertise of normative legal acts include blanket provisions to corruption-genious factors.
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