Пределы права и парадоксы правового регулирования

Государство и право. 2020. № 1. С. 20–31.

Skorobogatov V.

The article deals with the historical development of concept of limits of law and its relation in connection with rational/irrational opposition. The paradoxical nature of the limit as such consists in the fact that it creates a freedom space and decease irrational forces and at the same time restricts this freedom and force the freedom to overcome the limit. There are two types of limits of law: moral (principled) limits and practical (instrumental) limits. The rational basis of these limits is analyzed in article. The moral limits of law identify deviations in the relations between individuals, society and the state, irrational approaches and decisions. The paradox of moral limits manifests itself in the form of dependence of freedom on the modern state. Practical (instrumental) limits arise in a case when law subdue to the goals and functions of other systems, and lost its autonomy. The necessity of critics of using of law as a means-to-ends is substantiated. Practical limits of law are manifested when regulation ignores the state of social system: the level of integration of social system or its stratification or the level of democracy. Paradoxes of regulation arise both in the object regulation and in the legal system itself. If legal regulation ignores the autonomy of law, rationality of legal system decreases. The signs of these are the practical limits of law and paradoxes of regulation.

Keywords: правовая система, иррациональность, рационализация, парадоксы регулирования, legal system, limits of law, paradoxes of regulation, functions of law, instrumentalisation, пределы права, инструментализация