24.3 Efficiency of the mechanism of legal regulation A generalizing characteristic of the mechanism of legal regulation is its effectiveness. The effectiveness of legal regulation is understood as the ratio between the result of legal regulation and the

§ 2. The structure of the mechanism of the state The unified and integral mechanism of the state is differentiated (divided) into its constituent parts - organs, subsystems. There is a hierarchy between them: various bodies and subsystems occupy an unequal place in the state

§ 1. The concept of legal regulation Human society is characterized by varying degrees of organization, orderliness. This is due to the need to reconcile the needs, interests of the individual and the community of people (large or small social

§ 2. The subject of legal regulation Law should not and cannot regulate all social relations, all social ties of members of society. Therefore, at each specific historical stage community development the scope must be accurately defined.

§ 4. Stages of legal regulation Legal regulation is a process lasting in time. It involves the vigorous activity of people, their teams, both in the process of creating law and in the course of its implementation. The process of the impact of law on people's behavior and

§ 5. The legal regulation mechanism

§ 13.1. The concept of the mechanism of legal regulation Regulation of social relations is the main function of law, its main characteristic in action, in motion, in the process of realizing its capabilities. Therefore, the study of the mechanism of legal regulation is important in order to

§ 13.4. Efficiency of the mechanism of legal regulation The effectiveness of legal regulation is understood as the relationship between the result of legal regulation and the goal facing it. If the prescriptions established in the rules of law were implemented in a lawful

The system of social relations constantly requires legal influence, the forms and methods of which change depending on social needs. An important place in this process belongs to legal regulation and its mechanism, especially in connection with the strengthening of the role of law in the process of regulating relations between individuals, social groups and society.

Essence, features and structure of the mechanism of legal regulation

Most scientists consider the mechanism of legal regulation as a system, or a set of means by which social relations are streamlined (broad approach). S. Alekseev considers the mechanism of legal regulation to be a set of legal means taken in unity, with the help of which a legal impact on social relations is ensured. In his opinion, with the help of these means, not only is the ordering of social relations, but also the impact on the consciousness and behavior of subjects is carried out. Therefore, the concept of "mechanism of legal regulation" allows not only to bring together all the phenomena of legal reality (norms, legal relations, legal acts, etc.), but also to characterize them as integrity, to show in a system-dynamic form that characterizes the effectiveness of legal regulation, its ability to guarantee from the legal side the achievement of the goals set by the legislator; in this regard, highlight the specific functions that specific phenomena perform in the legal system, show their connection and interaction.

A. Skakun interprets the mechanism of legal regulation as a process of translating the normative nature of law into the orderliness of social relations, carried out with the help of a system of legal means and forms in order to satisfy public and private interests, to ensure the rule of law ("what is due" in law becomes "existing", i.e. norms of law are transformed into lawful behavior of subjects of law). With this in mind, the author emphasizes the possibility of streamlining social relations through a variety of funds and using certain forms. The goals of such streamlining are to ensure law and order, to satisfy public and private interests, and so on.

As M. Matuzov and A. Malko emphasize, the mechanism of legal regulation is a system of legal means organized in the most consistent manner with the aim of streamlining social relations and helping to satisfy the interests of subjects of law. Having a certain structural unity and logical sequence, this system of means carries out the regulation of social relations, contributes to the satisfaction of the interests and needs of the subjects.

Similar understanding of the mechanism of legal regulation is found by G. Kelman, O. Murashin, characterizing it as a single system of legal means through which the effective legal ordering of social relations and overcoming obstacles to satisfying the interests of subjects of law is carried out. This definition of the mechanism of legal regulation helps to highlight the signs that characterize its goal, means of achieving it and effectiveness. The purpose of the mechanism of legal regulation - overcoming obstacles to satisfying the interests of subjects of law - is achieved through the use of a set of means that differ in nature and functionality, but united in a system by a common goal.

The mechanism of legal regulation as a set of all legal means in their unity and interaction, with the help of which legal regulation is carried out, is considered by A. Cherdantsev. In his opinion, this is an ideal model, created as a result of the simplification of the regulatory process and removed from any secondary, non-essential points. He links the elements (blocks) of the mechanism of legal regulation to the corresponding stages of the regulatory process.

The mechanism of legal regulation is also considered in the context of the activity approach, which helps to rethink the traditional issues, highlight new fundamental problems, understand some categories, and more closely connect legal theory with practice. So, S. Komarov emphasizes that the mechanism of legal regulation expresses the activity side of the process of translating the normativity of law into the orderliness of social relations. S. Bobrovnik and N. Onishchenko propose to abandon the understanding of this mechanism only as the activity of the legislator who forms the rule of law, gives it an approving, obligatory or prohibitive character, as well as a means of fulfilling a legal prescription, subordinating subjects to a ban by subjects to whom this prescription concerns. A one-sided approach to the mechanism of legal regulation nullifies the goals of legal regulation, does not take into account the factors that influence its process.

Proponents of a narrow approach to understanding the mechanism of legal regulation consider it as a system of legal means (elements) that carry out simultaneous interconnected regulation of social relations of a certain type.

Legal regulation mechanism - a set of legal means, methods and forms that ensure the streamlining of social relations, satisfying the interests of subjects of law, establishing law and order in society, resolving conflicts, and achieving social compromise in the legal sphere.

Legal regulation is an integral part of social regulation. Its mechanism is a system of elements that interact. Among them, there are: legal means (norms, subjective rights and legal obligations, etc.), methods (permissions, prohibitions and obligations) and forms (compliance, execution and use). It ensures the regulation of social relations (is a dynamic part of legal system) is purposeful and effective.

With the help of the mechanism of legal regulation, they substantiate the need for legal regulation in society, streamline the phenomena of legal reality, ensure their unity, interconnection and interaction, transform legal prescriptions into real behavior of subjects of law.

The characteristic features of the mechanism of legal regulation are substantive and formal.

The goals of legal regulation are classified according to their significance (main and secondary), time (promising and immediate), results (final and immediate). They ensure the consolidation of social relations, create conditions for new ones, and prevent the emergence of socially harmful or dangerous relations.

Achieving the goals of legal regulation is carried out with the help of means of legal influence on the behavior of subjects. their combination, which are different in nature and functional purpose, forms formal sign mechanism of legal regulation. These legal means determine the forms of realization of the right (observance, execution and use) and form a certain system, although they are not tied to one sphere of social relations. their purpose is to ensure social freedom and activity of the behavior of subjects (permissions) or impose a passive duty on individuals to refrain from taking actions that interfere with the interests of a person (prohibition), provide for certain behavior, guarantee the use of subjective rights by other subjects (obligations). They should contain positive incentives regarding the implementation by the subjects of their subjective rights and the fulfillment of the duties assigned to them, as well as be aimed at achieving a certain result - ensuring the effectiveness of legal regulation.

they are associated with the subjective rights of a person (permissions) or other persons (obligations, prohibitions), and are also interconnected with each other and with other varieties of legal norms - encouraging, binding and prohibiting.

The characteristic of the mechanism of legal regulation helps to establish its constituent elements, to ensure their unity and mutual consistency. The need for various legal means is due to the ambiguity of meeting the interests of various subjects of law. As instruments of legal influence, they must be diverse and interrelated, form a certain system and be aimed at achieving the effectiveness of legal regulation.

In modern legal science, two approaches have been formed regarding the definition of the elements of the mechanism of legal regulation.

1) a broad approach, which is characterized by a set of elements involved in the improvement of public relations:

The rule of law, which defines the models of possible and necessary behavior of the subjects of public relations;

Normative legal act - a legal document that provides a legal norm of a formally defined, official and binding nature;

Legal facts - specific life circumstances that cause the operation of the rule of law;

Legal relations - a kind of social relations that are regulated by a legal norm and perform the functions of interaction of a legal norm with a specific subject and determining the specific behavior of personified subjects;

Interpretation of the activity to determine the true content of the rule of law in case of its ambiguity or inconsistency with the requirements of legal technique;

Realization of law - the embodiment of a legal norm through compliance, execution, use and application;

Legality as one of the principles for the implementation of legal requirements for compliance with the requirements of the rule of law by subjects of law;

Legal awareness as a level of awareness of legal requirements by subjects of law;

Legal culture as a kind of general culture, consisting of spiritual and material values ​​related to legal reality;

Lawful behavior - the conscious activity of subjects that complies with the rule of law, socially useful goals and is within the limits established by law;

Illegal behavior - behavior that is contrary to legal regulations;

Legal liability is a measure of state coercion (of a personal, property or organizational nature) applied to subjects who have committed offenses and is associated with the imposition of a new additional debt on them.

2) a narrow approach to the structure of the mechanism of legal regulation covers only those elements that form the basis of the regulatory function of law. Among them are the rules of law, normative legal acts, legal relations, the implementation of law, legality. Each of the elements of this system performs a specific function in satisfying the interests of subjects, regulating social relations, and achieving the effectiveness of legal regulation.

Delimiting the elements of the mechanism of legal regulation from other legal phenomena, S. Alekseev points to the following features: institutionality, specific functionality (the elements of the mechanism of legal regulation include legal phenomena that actually function - legality, legal consciousness).

1. 
   Legal impact and legal regulation. The concept of legal influence. Informational and educational impact. Legal regulation. Subject of legal regulation.

There are the following types of legal influence:

1. 
   ^ Information impact

1. 
   ^ Educational (value-oriented) impact

1. 
   ^ Legal regulation

1. 
   By means of influence (these means are purely legal in nature)
2. 
   By subject of influence

1. 
   According to the impact

Subject of legal regulation. They are social relations subject to regulation. The breadth of the subject of regulation depends on the nature of the state. A totalitarian state seeks to expand its subject of regulation - this leads to disorganization, suppression of freedom and initiative in society. Democratic states are limited to its certain framework. But excessive narrowing of the subject of regulation can lead to chaos in society.

Relationships that concern the interests of large groups of people and classes necessarily need to be regulated. These include economic, property rights, the procedure for exchanging material goods, this is the formation of the chamber and political relations. The subject of regulation and its goals determine the choice of means of regulation.

1. 
   ^ Legal regulation mechanism and its main elements

^ The main means of legal regulation - with ways of realizing the interests of subjects of law. They include :

1. 
   Rules of law that make up the system of internal division of labor. This is the main means of legal regulation, which contains a model of the necessary behavior.
2. 
   Principles of law, fixed in the rules of law or formalized in them, existing as customs
3. 
   Sources of law that make up the system as ways of expressing legal ideas in objective reality. And in tasks to inform people in a form accessible to them about the will of the state, expressed in legal norms.
4. 
   Acts of official interpretation of the law, which provide clarification of rules that are not entirely clear and understandable
5. 
   Legal facts as special facts of reality, with which the state associates the beginning of the implementation of norms into objective reality
6. 
   Legal relations with subjects, objects, subjective rights and obligations identified in law. They serve as an individualization of the prescription laid down in the general rules of law.
7. 
   Law enforcement acts. These are imperious individual decisions of the competent authorities, specifying the rules of law, indicating specific rights and obligations of specific individuals.
8. 
   Acts of implementation. This is the behavior of people in accordance with the prescriptions of the rule of law, carried out in such forms as the fulfillment of duties, the implementation of prohibitions, used in the rules of law.
9. 
   Legal responsibility as a special kind of legal relationship arising from an offense and a special type of legal obligation of the offender to suffer punishment for the offense committed.
10. 
    Legal consciousness. This is a special form of legal consciousness, which is of decisive importance for the behavior of people.
11. 
    Legality. This is the most important legal principle, the regime of social relations.

1. 
   ^ The process of legal regulation and its stages

1. 
   Stage of general operation of legal norms

1. 
   The stage of emergence of subjective rights and obligations

1. 
   Stage of implementation of rights and obligations

The process of legal regulation is usually called complex if there is an enforcement stage in it, otherwise this process is called simple.

1. 
   ^ Elements of the legal regulation system

^ Ways of legal regulation

As methods of legal regulation, we single out permission, i.e. providing subjects with opportunities to commit rights, actions or inactions. binding- a request to take some action. Ban- refrain from action. promotion(stimulation) is a proposal to act in a certain way with the simultaneous approval of measures for the specified behavior. Recommendation- this is an indication of the state to the most acceptable rule of conduct from its point of view. The combination of these methods of legal regulation makes it possible to implement the functions of law.

^ Law enforcement function implemented through prohibitions to perform any actions and the obligation of the state to apply responsibility for the offense. Regulatory-dynamic function is implemented by obliging to perform any actions that will not be performed without state coercion or by granting the rights to perform them.

^ Regulatory-static function implemented through the prohibition to commit socially dangerous acts.

Application various ways legal regulation characterizes political regime states. ^ Authoritarian regime compelled to apply prohibitions and obligations, democratic regime permission in most cases.

Levels of legal regulation

There are different levels:

1. 
   Centralized level

1. 
   Decentralized level

Legal regulation methods:

1. 
   normative regulation, which consists in the publication of the norms of law by central and local norms.
2. 
   Individual regulation

^ Legal regulation methods:

1. 
   Imperative method (administrative-legal)

The rights and obligations of the parties are precisely outlined and cannot be changed by agreement of the parties. On the side of the organ of the state, there are mainly rights, and on the side of others - mainly duties.

Legal relations arise in most cases on the basis of an act of law enforcement.

1. 
   ^ Dispositive method (civil law)

The emergence of legal relations occurs directly from the legal act without the participation of the law enforcer or the contract.

1. 
   ^ incentive method

Types of legal regulation

The type of legal regulation is a combination of permits and prohibitions in various proportions. There are such types of legal regulation as:

1. 
   ^ public type

Characteristic for democratic states; acts on citizens; and in relation to officials - permissive type of regulation.

1. 
   ^ Permissive type

^ Legal regulation:

1 stage- regulation of social relations. This stage is provided by the rule of law;

2 stage– it is necessary that subjects have subjective rights and corresponding legal obligations. The stage is called: Emergence ... this stage is provided by such a legal means as a legal relationship.

3 stage- Implementation of subjective rights and corresponding duties. Provided by acts of implementation + there may be law enforcement acts of the court (if the regulation is complex).

But in these stages, not all legal means of the mechanism of legal regulation; these are just the main ones. They correspond to and provide the main stages of legal regulation. Therefore, they are called the main elements. We have a lot of other legal means that are included in the mechanism of legal regulation. Legal consciousness, for example, permeates all stages in general. The same is legality and legal culture, responsibility.

^ Rules of law as one of the elements of the mechanism of legal regulation

The rule of law is the legal basis for legal regulation. Where does legal regulation begin? The specific function of legal norms in the mechanism of legal regulation lies in the normative regulation of social relations. This means that with the help of legal norms, certain relations and the entire set of legal means are programmed in accordance with the needs of the development of society.

Legal norms, first of all, program and direct people's behavior in accordance with the established norm and the ideal model of social relations. In addition, the legal norm provides for legal means by which possible or proper behavior is ensured, including subjective rights, legal obligations and possible sanctions for offenses.

When we talk about a legal norm, we mean that it is a rule of conduct that:

1. 
   obligatory
2. 
   formally defined
3. 
   Coming from the state and guaranteed by it
4. 
   Serving as a regulator of public relations
5. 
   Representative-binding nature, i.e. the right and the duty corresponding to this right must be fixed in the norm. If this is not the case, then there is no organism.

The same can be done with disposition and sanction.

The question arises: does any rule of law contain these elements? Is an article of law and a rule of law the same thing? An article of law is a way of expressing the rules of law in a normative act. There are different options:

1. 
   The rule of law contains all three elements - a direct way
2. 
   One article contains not one rule, but several rules of conduct
3. 
   One norm is stated not in one article, but in several articles (blank and reference norms)

^ Classification of norms

Necessary meant to name the grounds and criteria for classification.

If a classify law on:

1. 
   Functions (goals)
   1. 
      Regulatory

1. 
   Protective

1. 
   Depending on the nature of the rules of conduct
   1. 
      imperative
   2. 
      dispositive
2. 
   By the nature of the relationship
   1. 
      material
   2. 
      Procedural
3. 
   By branch of law - many
4. 
   By area of ​​operation
   1. 
      international law
   2. 
      National regulations
5. 
   By sources of law

1. 
   By way of influencing social relations
   1. 
      binding
   2. 
      Forbidding
   3. 
      empowering

The main purpose of law is the detailed regulation of the most significant social relations, for which a whole arsenal of various means of legal influence is used. In their coordinated system-forming interaction to achieve the set goals, they form a single, well-coordinated mechanism.

To designate the operation of this mechanism in the legal literature, the category “mechanism of legal regulation” is used.

Legal regulation mechanism - it is a system of legal means organized in the most consistent way in order to overcome the obstacles that stand in the way of satisfying the interests of subjects of law.

This mechanism allows:

• provide a comprehensive impact various means on social relations, people's behavior;
• show the dynamics of law, the mechanism of its real functioning;
• identify the specific functions and regulatory capabilities of each of the phenomena of legal reality, its relationship with other legal phenomena and processes.

Target mechanism of legal regulation - to ensure the unimpeded movement of the interests of subjects to values ​​(meaningful feature). The mechanism of legal regulation is a system of legal means of various nature and functions that allow achieving its goals (a formal feature).

The need for various legal means operating in the mechanism of legal regulation is determined by the different nature of the movement of the interests of subjects to values, the presence of numerous obstacles that stand in this way.

Elements of the mechanism of legal regulation are the starting, actually functioning fragments of the legal system, reflecting the main stages of the impact of law on social relations. Distinguish: the stage of regulation of relations; the stage of emergence of individual rights and obligations; stage of realization of rights and obligations. At each of the stages, the main elements of the mechanism of legal regulation are distinguished as backbone centers that determine the main content of the stage. All other legal phenomena and processes that form auxiliary elements of the mechanism of legal regulation (legal awareness, legal culture, legal technique, etc.) are grouped around them as peculiar subsystems.

The following elements of the mechanism of legal regulation can be distinguished:

• rule of law (it establishes a model for satisfying interests);
• a legal fact or actual composition with such a decisive fact as an organizational and executive law enforcement act;
• legal relationship (regulatory requirements here are specified for the relevant subjects);
• acts of realization of rights and obligations (actions of subjects in the form of compliance, execution and use);
• protective law enforcement act (used in case of an offense).

The effectiveness of the mechanism of legal regulation directly depends on how competently the goals of regulation are defined and how optimally the means are selected to achieve them.

When forming the goal, the desired result is modeled and a set of means is motivated that, according to the subject, can lead to its achievement.

Means, methods, methods, types of legal regulation mechanism

Law is intended to regulate social relations. This process is not carried out by itself, it operates on the basis of an appropriate mechanism of legal regulation. To clarify this concept, let's define the concept of "legal regulation".

Immediately, we note that in legal science, the concepts of "legal regulation" and "legal influence" are distinguished.

Under legal regulation understands the impact of law on social relations with the help of legal means, ways and methods. So, criminal law contains a requirement not to commit socially dangerous acts. In this case, for the appropriate legal impact on social relations, appropriate means are used (prohibitive rule of law, legal liability, punishment), method (prohibition), method (imperative).

Taken together, the means, methods and methods of influencing law on social relations are a mechanism of legal regulation. Thus, legal regulation mechanism- this is a system of legal means, ways and methods of influencing the law on social relations, which makes it possible to implement the rules of conduct contained in the norms of law.

Purpose of the regulatory mechanism consists in ensuring the effectiveness of legal norms, that is, in their “revitalization”, coupling with legal facts and, accordingly, satisfying the interests of individuals, organizations, the state, and the whole society expressed in law.

The concept of "legal impact" is broader than legal regulation. It covers the entire set of legal phenomena that affect social relations. Legal impact - this influence on social relations not only by legal means, ways, methods, but also by other legal phenomena (such as legal awareness, legal culture, legal principles, etc.).

For example, the non-commission of crimes by the absolute majority of people is explained not only and not so much by legal means, methods and methods, but by the prevailing legal consciousness, which implies respect for the law.

To understand the essence of legal regulation and the mechanism of legal regulation, let us consider the concepts of means, methods and methods of influencing law on social relations.

Legal means- these are peculiar legal instruments with the help of which the ordering of social relations is carried out and the interests of the subjects of law are satisfied. The legal means are the rules of law, subjective rights and legal obligations, legal responsibility, legal restrictions, legal incentives, legal incentives, etc.

The first three components of these legal means were considered by us in detail earlier. Therefore, we limit ourselves brief description some other legal means.

Legal restrictions are associated with a decrease in the volume of opportunities, freedom, and hence the rights of the individual to reduce its negative activity and deter illegal acts. Thus, the law, in appropriate cases, provides for the limitation of the legal capacity of children who are mentally ill. The types of legal restrictions are contained in the rule of law: in the hypothesis (legal fact - restriction), disposition (legal obligation - prohibition), sanctions (punishment).

Legal incentive- this is a legal incentive to law-abiding behavior, involving an increase in positive activity. It is expressed in the promise or provision of values, and sometimes in the abolition or reduction of the measure of deprivation of value (for example, reducing the measure of punishment is an incentive). The types of legal incentives are also contained in the rule of law: in the hypothesis (legal fact - incentive), disposition ( subjective right), sanctions (encouragement).

Thus, the legal incentive is most directly related to another legal means of regulating social relations - legal incentives. Legal promotion acts as a form and measure of legal approval of lawful, well-deserved behavior, as a result of which favorable consequences occur for the subject (awarding with an order, Certificate of Honor, issuance of a monetary award, early assignment of a title, early release from prisons, etc.).

Ways of legal regulation

The mechanism of legal regulation involves the use of various ways of direct influence of legal regulations on social relations.

These are the methods by which legal regulation is carried out. Their content depends on the specifics of the legal norms by which such regulation is carried out.

The main methods of legal regulation are permission, prohibition, obligation.

permission- a method of legal regulation that provides a participant in a legal relationship with a choice of their actions to implement one or another subjective right within the framework of the opportunities provided by this right.

Legal permissions are expressed in regulations. Most often this is done through enabling norms rights. For example, the owner of property can dispose of it at his own discretion: sell, donate, lease, mortgage.

Prohibition- a method of legal regulation, meaning that a participant in a legal relationship is obliged not to take actions specified in legal norms.

Legal prohibition is an important legal way to ensure the organization of social relations, the protection of the rights of individual citizens, organizations, the state, and society as a whole. This is a kind of barrier to undesirable, harmful and dangerous behavior for society.

Legal prohibitions come, as a rule, from the corresponding moral prohibitions accepted in society. For example, in society, lies are condemned. Some of its varieties (slander, perjury, etc.) are regulated in the rules of law as legal prohibitions.

Violation of the prohibitions implies the onset of legal liability. The presence of a legal prohibition also implies the existence of a body or official who has the right to demand its implementation.

Legal prohibitions are expressed in regulations in the form prohibition rules. This is especially evident in criminal law. All articles of the Special Part of the Criminal Code of the Russian Federation contain prohibitions not to perform the actions specified in the dispositions under the threat of punishment.

binding- a method of legal regulation, meaning that a participant in a legal relationship is obliged to perform certain actions specified in legal norms.

Unlike prohibition, obligation does not involve passive, but active behavior. Obligation is usually used to regulate financial activities, protect environment, labor protection.

Obligation is expressed in normative acts in the form binding norms. For example, according to Art. 57 of the Constitution of the Russian Federation, everyone is obliged to pay the established taxes and fees, and according to Art. 59 of the Constitution of the Russian Federation, a citizen of Russia is obliged to perform military service in accordance with federal law. As with a legal prohibition, failure to comply with a legal obligation entails legal liability.

It should be noted that the methods of legal regulation are directly related to the means of regulating public relations. So, for permission as a way of legal regulation, appropriate legal means are needed: governing norms, legal restrictions, subjective rights, etc. Accordingly, for prohibition and obligation - prohibiting and binding norms, legal obligation, prohibitions, legal incentives, legal incentives, legal restrictions, etc.

Legal regulation methods

The concept of the method of legal regulation is closely related to the concept of the method of legal regulation (in the literature, these terms are sometimes used interchangeably).

The method of legal regulation shows the nature of the relationship between the participants in the legal relationship. There are usually two main methods of legal regulation:

• imperative method implies the imperious command of some participants in legal relations to others. For example, in the case of a crime, the state applies fairly harsh coercive measures against the offender. This method is also called in the literature the method of subordination, the authoritarian method, the method of subordination;
• dispositive (autonomous) method implies the equality of subjects of legal relations, for example, in civil law relations - the conclusion of contracts for the sale, lease, storage.

As we noted earlier, the methods of legal regulation are the most important criteria for delimiting the right to industries.

In the literature, the following are also distinguished as independent:

• method of encouragement (typical, for example, for labor law);
• method of persuasion (characteristic of most branches of law);
• method of coercion (typical for branches of law that provide for legal responsibility).

It should be noted that the ways and methods of legal regulation are "tied" to the relevant rules of law and forms of implementation of the law. So, permission as a way of legal regulation corresponds to a dispositive method, authorizing norms and the use of law as a form of its implementation. Accordingly, prohibition as a method of legal regulation is characterized by an imperative method, prohibiting norms, compliance as a form of implementation, and obligation - an imperative method, binding norms and enforcement as a form of realization of a right.

Types of legal regulation

The general orientation of the right to social relations depends on what underlies legal regulation - permission or prohibition. Depending on this, legal regulation is divided into types:

• permissive type;
• public type.

Permissive type legal regulation involves the use of the principle "everything is prohibited except expressly permitted". Subjects can perform only those actions that are permitted in the rules of law. It is usually used in the branches of the criminal law complex (criminal law, criminal procedure law, penitentiary law), administrative law, etc.

public type legal regulation involves the use of the principle "everything is allowed, except for what is expressly prohibited." This type of regulation takes place primarily in the sphere of civil law relations, when subjects have the right to perform any actions, with the exception of those that are contrary to the law.

In legal practice, these methods, methods and types of legal regulation in pure form do not meet: in any branch of law there is a combination of them.

Structure of the mechanism of legal regulation

The mechanism of legal regulation as a system generally has the following elements:

• . It represents the initial basis for legal regulation. It contains a model of the desired behavior that the subject of law must follow;
• (actual composition), which is the "trigger" of the mechanism of legal regulation. With its appearance, the norms of law “come to life” and the mechanism of legal regulation is set in motion;
• a legal relationship that has arisen with the advent of a legal fact (actual composition);
• protective enforcement act (optional element).

In the mechanism of legal regulation, all these elements are combined, and the mechanism is set in motion.

According to the specified elements, the following stages of the mechanism of legal regulation are distinguished:

• regulation of social relations, the input of which is issued the corresponding rule of law;
• the emergence of real circumstances necessary for the operation of the rule of law, which are associated with the presence of legal facts. In legal practice, the impetus for movement is a legal fact, that is, an event or action (inaction) that generates, changes or terminates legal relations;
• identification of the object and subjects of the legal relationship that has arisen, the corresponding rights and obligations. At this stage of legal regulation, it is determined who and how will fulfill the requirements of the rule of law, that is, the general model of behavior laid down in the rule of law is specified in relation to the subjects;
• direct realization of the rights and obligations of subjects of legal relations. This is the actual behavior of the subjects, ensuring the result to which the will of the legislator was directed;
• issuance of a law enforcement act — an authoritative decree of the competent authorities that guarantees the exercise of the rights and obligations of the subjects of legal relations. In this case, the law enforcement act is considered as the last link in the mechanism of legal regulation, as a result of which the subject of law achieves a certain goal. In accordance with the law enforcement act, a new legal relationship arises (in this case, the law enforcement act acts as a legal fact) and the mechanism of legal regulation is turned on again, but its content will be different.

Let's consider the operation of the mechanism of legal regulation on a specific example. So, the applicant has a goal - to enter a university. To exercise the right to enter a university, an applicant relies on the relevant rules of law, that is, the stage of regulation of public relations has already taken place. According to Art. 43 of the Constitution of the Russian Federation, everyone has the right, on a competitive basis, to receive higher education free of charge in a state or municipal educational institution. This rule of law was further developed in the publication of federal laws "On Education", "On Higher and Postgraduate Education" and a number of by-laws.

In order for this rule to start working, the emergence of real circumstances necessary for the operation of the rule of law, which are the relevant legal facts, is necessary. These are the achievement by a person of a certain age, the receipt of general secondary education by him, and the main legal fact in this case is the submission by the person himself of an application about the desire to study at a particular university with all the necessary documents attached.

This actual composition sets in motion the entire mechanism of legal regulation. Within the framework of the legal relations that have arisen, there is a legal qualification of legal facts, that is, their comparison with the relevant legal norms. Mutual rights and obligations appear: on the one hand, the applicant, and on the other, the administration of the university. The latter, in particular, is obliged to provide the necessary conditions for the competitive selection of the most prepared applicants.

The act of realization of the right is stated in the relevant law enforcement act - the order of the rector of the university on enrollment in an educational institution.

The order of the rector on enrollment - a law enforcement act - brings to life a new legal relationship associated with obtaining higher education. In this case, the mechanism of legal regulation with new content also operates.

In the mechanism of legal regulation, one more, sixth stage of the mechanism of legal regulation is possible - protection of violated rights, what can happen if one of the subjects of legal relations fails to exercise their rights as a result of lawful action other entities. The emergence of law enforcement in this case is associated with circumstances of a negative nature (the danger of an offense or an offense).

Goals and means in the mechanism of legal regulation

Legal purpose - this is an ideal state of relations, phenomena or processes assumed by an authorized body, for the achievement of which it is proposed to use certain complexes of legal means. It is characterized by formality, officiality, obligatory nature and coordination of actions to achieve it.

In the process of operation of the mechanism of legal regulation, the goals of the legislator, the law enforcer and the specific participant in legal relations collide with each other. The unity of these goals integrates all elements of the mechanism of legal regulation into a single mutually agreed system that allows achieving the optimal result. At the same time, a misunderstood need, unscrupulous motivation (a motive is a link between an objective need and the goal that is set to satisfy it), errors in the choice of means or an incorrectly set goal of one of the subjects can nullify all the efforts of a law-making body and interrupt functioning of a well-oiled mechanism.

At each stage of legal regulation, auxiliary, intermediate goals are achieved that are objectively necessary to achieve the planned result and the desired specific goal. Thus, they distinguish: general and private goals, basic and non-basic, abstract and specific, public and individual, etc.

Achieving the goal is possible only with the help of an acceptable and sufficient set of legal means, depending on the nature of the interest being satisfied.

Legal means - these are legal phenomena expressed in instruments (establishments) and deeds (technologies), with the help of which the interests of subjects of law are satisfied, socially useful goals are achieved.

General signs of legal means:

• they express all the generalizing legal ways of ensuring the interests of subjects of law, achieving the goals set (which is the manifestation of the social value of these entities and law in general);
• reflect the information-energy qualities and resources of law, which gives them a special legal force aimed at overcoming obstacles that stand in the way of satisfying the interests of participants in legal relations;
• combined in a certain way, they act as the main working parts (elements) of the operation of law, the mechanism of legal regulation, legal regimes (i.e., the functional side of law);
• lead to legal consequences, specific results, varying degrees of effectiveness of legal regulation;
• provided by the state.

Legal means can be classified on various grounds. Depending on the degree of complexity, they are divided into primary(elementary) and complex(composite).

If the former include the simplest and indivisible prescriptions - subjective rights and legal obligations, rewards and punishments, benefits and prohibitions, etc., then the latter are combined, consisting of the simplest ones - a contract, a norm, an institution, a legal regime, etc. According to their role, they are divided into regulatory(permissions) and protective(protection measures); on the subject of legal regulation - on constitutional, administrative, civil, criminal and etc.; by nature - substantive(recommendations) and procedural(claim); according to the significance of the consequences - on ordinary(penalty) and exceptional(the death penalty); by duration of action permanent(citizenship) and temporary(premium); by type of legal regulation normative(prohibitions established by law) and individual(act of application of law, act of realization of rights and obligations); in terms of informational and psychological focus — on stimulating(benefits) and limiting(suspension), etc.

The means is the middle link between the goal and the result. Therefore, legal means, acting as a specific mediator, inevitably include both fragments of the ideal (means of establishment - rights, obligations, rewards, punishments, etc.) and fragments of the real (means of action aimed at using tools - primarily acts of implementation rights and obligations).

Ignoring the means-actions (technology) does not allow to fully take into account all the factors that can be used to achieve the goals. After all, the result cannot be obtained without deeds, efforts, activity associated with the use of the tools provided in the legislation. Among other things, the non-inclusion of acts in the concept of "legal means" will also be associated with the "cutting off" from the mechanism of legal regulation of a number of its well-known elements: legal facts (lawful actions), acts of application of law (primarily acts-actions), which also contradicts logic and is not justified.

Principles of cooperation means-institutions and means-actions in the process of achieving goals can be the following:

• a fairly complete choice of means-installations for the implementation of certain means-acts (if there are not enough legal forms, subjects can sometimes use illegal, illegal ones to satisfy their interests);
• providing specific means-actions with guaranteeing means-institutions (encouragements and punishments);
• accounting practice use of funds formations in appropriate conditions, i.e., taking into account really existing means-acts;
• harmonization of their legal force;
• complementarity of tools (as informational phenomena) and technology (as energy phenomena);
• cost savings of both the first and second kind.

In achieving the goal of legal regulation, it is important for law-making and law enforcement entities not to resort to extremes:

• to underestimation of tools and overestimation of technology, which necessarily leads to shortcomings associated with the regulatory framework (legal vacuum, gaps, imperfection of means-establishments as criteria for commanding persons, etc.);
• to an overestimation of tools and an underestimation of technology, which inevitably entails a separation of the legal form from the content - social relations and is ultimately expressed in "dead" laws, "idle" acts, overorganization, legal idealism (when the ideal beginning in the means is clearly dominates the real);
• to the simultaneous underestimation of both tools and technology, which is expressed in legal nihilism, in ignoring both the legal form and content, in a low legal culture, in various kinds of offenses;
• to the simultaneous reassessment of both tools and technology, which leads to a separation of legal entities from reality and, accordingly, to failure to achieve the goals of legal regulation.

Among functions of legal means the most important is the achievement of the objectives of legal regulation. It manifests itself in the fact that by their “work” these phenomena ensure the unimpeded movement of the interests of subjects to values, guarantee their legitimate and fair satisfaction, which reflects the role of legal instruments and technology in common system legal factors. Legal means create general opportunities guaranteed by the state and society to strengthen positive regulatory factors and, at the same time, to remove obstacles (negative factors) that stand in the way of streamlining social ties.

The function of legal means is also the fact that they bring civility into existing social relations, offering instead of illegal and spontaneous legal mechanisms for solving emerging problems, legal ways elimination of conflicts, legal energy in overcoming obstacles standing in the way of satisfying the interests of subjects of law. Legal means, thus, signal the degree of civilization of this particular society, acting as an indicator of its legal capabilities and the level of legal development, indicate the demand for a legal form in the orderliness of socio-economic and other relations (content), the competitiveness of legal factors with factors, on the one hand side, extra-legal (moral, political, organizational, etc.), and on the other hand, illegal.

Legal means perform the function of a universal " building material”, which makes up the system of law, because they unify all those phenomena that make up the law - a legal fact, a subjective right, an obligation, encouragement, punishment, a norm, an institution, a sub-sector, an industry, etc. A certain combination of legal means in legal regimes, methods of legal regulation gives specificity to branches and institutions of law, expresses a special order of organization of specific social relations, which allows them to be regulated more differentiated and flexibly.

Consider the dialectic of ends and means in law.

On the one hand, depending on the goal, the choice of means for achieving it is carried out, because the goals require appropriate legal means for themselves, determine their nature and direction. If a particular law aims to develop any social relations, to promote the formation of new socially valuable ties, then, as a rule, the text of this document uses stimulating legal means (encouragements, benefits, permissions, etc.). And vice versa, if an act is adopted for the purpose of protecting and defending certain relations, then predominantly legal means of a restrictive plan are used (prohibitions, suspensions, punishments, etc.). Of course, in addition to goals, the choice of legal means in their establishment is also influenced by the nature of social relations, the nature of the branch of law, and possible obstacles that negatively affect the process of obtaining socially significant results.

At the same time, the goal itself must proceed from the legal means that are actually available and necessary to achieve it.

An effective law contains reasonable and scientifically sound goals and means to achieve them. And vice versa, if the legislator incorrectly defines goals, allows inaccuracies in the choice of means, the law will not give the expected result, will not contribute to the maximum achievement of the main tasks of the state and society.