Discretion as an element of legal consciousness and dialectics of its deve­lopment in the mechanism of discretionary decision-making by subjects of legal regulation

R.G. Valiev

Kazan Federal University, Kazan, 420008 Russia

E-mail: raf.val.111@yandex.ru

Received January 12, 2021

 

ORIGINAL ARTICLE

Full text PDF

DOI: 10.26907/2541-7738.2021.2.25-34

For citation: Valiev R.G. Discretion as an element of legal consciousness and dialectics of its development in the mechanism of discretionary decision-making by subjects of legal regulation. Uchenye Zapiski Kazanskogo Universiteta. Seriya Gumanitarnye Nauki, 2021, vol. 163, no. 2, pp. 25–34. doi: 10.26907/2541-7738.2021.2.25-34. (In Russian)

Abstract

The rational and mental nature of discretion of the subjects of legal regulation was discussed. The relevance of the psychological approach in the study of discretion as a legally significant reflection was substantiated. In the context of the dialectical principles of interrelation, consistency, and causality, the psychological mechanism of making a discretionary decision by the subjects of legal regulation was revealed, and its main stages were singled out. The importance and constituent elements of the law-regulating situation were considered. The functional potential of discretion as a rational and mental resource of legal regulation, which has a great influence on it and its results, was revealed. The essence of the concept of discretion of the subjects of legal regulation was identified. It was concluded that there are stable and necessary connections between legal regulation and discretion as an element of the legal consciousness of its subjects. These connections determine the discretionary nature of legal regulation. As an element of the legal consciousness of the subjects of legal regulation, the essence of discretion is in a normatively conditioned evaluative perception of the legally important conditions and circumstances of the law-regulating situation that determine the validity of the grounds for adoption of a normative, law-enforcing, and law-interpreting legal act in the context of the relevant social needs and interests of the development of society, state, and individuals.

Keywords: legal regulation, legal consciousness, law-regulating situation, legal qualification, discretion

References

  1. Teoriya gosudarstva i prava [Theory of State and Law]. Korel’skii V.M., Perevalov V.D. (Eds.). Moscow, Infra-M, 2000. 616 p. (In Russian)
  2. Cherdantsev A.F. Logiko-yazykovye fenomeny v yurisprudentsii [Logical and Linguistic Phenomena in Jurisprudence]. Moscow, Norma, Infra-M, 2012. 319 p. (In Russian)
  3. Vlasenko N.A. Teoriya gosudarstva i prava [Theory of State and Law]. Moscow, Yurisprudentsiya, 2009. 423 p. (In Russian)
  4. Lazarev V.V. Sotsial’no-psikhologicheskie aspekty primeneniya prava [Socio-Psychological Aspects of Law Enforcement]. Kazan, Izd. Kazan. Univ., 1982. 144 p. (In Russian)
  5. Tikhomirov Yu.A. Discretion in the focus of law: Autonomy and enforcement. In: Tikhomirov Yu.A. Pravovoe regulirovanie: teoriya i praktika [Legal Regulation: Theory and Practice]. Moscow, Formula Prava, 2008, pp. 151–158. (In Russian)
  6. Valiev R.G. Dispositive method of public-legal regulation. Uchenye Zapiski Kazanskogo Universiteta. Seriya Gumanitarnye Nauki, 2011, vol. 153, no. 4, pp. 22–29. (In Russian)
  7. Skudarnov A.S. Discretion in the process of enforcing the rights, freedoms, and responsibilities of citizens (and their associations). Cand. Law Diss. Chelyabinsk, 2014. 211 p. (In Russian)
  8. Nikitin A.A. Discretion in law and its characteristics. Vestnik Saratovskoi Gosudarstvennoi Yuridi­cheskoi Akademii, 2012, no. 6, pp. 34–41. (In Russian)
  9. Vlasenko N.A. Problemy pravovoi neopredelennosti [Problems of Legal Uncertainty]. Moscow, Inst. Zakonodatel’stva Sravn. Pravoved. Pravitel’stve RF, INFRA-M, 2015. 176 p. (In Russian)
  10. Pogodin A.V. Case-oriented right-regulative complex: Problem definition. Uchenye Zapiski Kazanskogo Universiteta. Seriya Gumanitarnye Nauki, 2008, vol. 150, no. 5, pp. 45–50. (In Russian)
  11. Tarkhanov I.A. Legal qualification: Concept and place in the law enforcement process. Rossiiskii Yuridicheskii Zhurnal, 2012, no. 3, pp. 130–140. (In Russian)
  12. Pogodin A.V. Legal consciousness of the subject of law enforcement. In: Bakulina L.T. (Ed.) Problemy teorii prava i pravorealizatsii [Problems of the Theory of Law and Law Enforcement]. Moscow, Statut, 2017, pp. 346–383. (In Russian)

 

The content is available under the license Creative Commons Attribution 4.0 License.