22 (1)
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2022
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catalogue – 43669
ANTINOMIES
Until 01.01.2019 - Scientific Yearbook of the Institute of Philosophy and Law of the Ural Branch of the Russian Academy of Sciences

ISSN 2686-7206 (Print)

ISSN 2686-925X (Оnlinе)

Lekanova Ekaterina

Abstract. In the legal doctrine, there is no consensus on the legal nature and the name of the legal prescriptions that do not establish rights, duties and prohibitions. Some legal scholars call them specialized, and refer to the legal norms, other legal scholars call hem
atypical (non-standard) legal prescriptions, and differentiate them from the rules of law. The article also analyzes the possibility of classifying the entire complex of the studied phenomena as system-determining legal prescriptions. Depending on the function, they can be divided into system-degerming and system-ensuring (system-adaptive). This division is critically commented in the article. The concept of “legal prescription” is broader in scope than the “legal norm”, as it includes the rules of law and the rules on the content, operation, and application of the rules of law (not establishing rights, duties and prohibitions). The rules on the content, operation and application of the law deserve the name “system-determining legal regulations” because they define the limits of the possible content of the law or determine the choice of law when they compete, allow or block the use of certain rules of law. If a “working” rule of law is hypothetically taken out from legislation, its absence will not affect the content or the possibility of applying other rules of law, and can be, for example, filled in by law analogy. In turn, the removal of a legal prescription (that is not a rule of law) from the legislation can «break» the entire branch, subsector or institution of legislation, because either the law will not be «filtered» by content, or unsolvable conflict of laws will arise, or there will be gaps in relation to certain types of legal relationships. System-determining legal prescriptions are divided into those that consist of rules on the content of legal norms (the subject of regulation; principles of law; legal presumptions, fictions, axioms; legal definitions; provisions on the composition of formal sources; provisions on the applicability of the law analogy and the analogy of legislation; the provisions on the subsidiary application of norms of the multisectoral legislation), and those that contain rules on the operation and application of the law (rules on the effect of prescriptions in time, in space, in personal, on retroactivity, conflict-of-laws and operational regulations).
Keywords: specialized legal norms; atypical legal prescriptions; system-determining legal prescription; subject of regulation of the law; principle of law; legal calculations; secondary definitions; generic definitions; presumptions; fictions.

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