APPROACHES TO UNDERSTANDING THE ESSENCE AND ROLE OF LEGAL RESTRICTIONS

Abstract

The analysis of scientific sources provides grounds to assert that legal regulation is the regulation of social relations carried out through law and the entire set of legal means. The concept of “regulation” (from Latin regulo – rule) implies organization, adjustment, and bringing something into conformity with something else. In our view, to regulate means to define the behavior of individuals and their collectives, to direct their functioning and development, to provide certain limits, and to organize them purposefully. Alongside this, some scholars relate the term “regulation” solely to law as a system of norms and some other specific legal phenomena (legal relations, acts of law implementation). They disagree with the existing understanding of the regulation of social relations as the rigid and authoritative norming by the state and law, as, in their opinion, the category of “regulation” is not synonymous with coercion, rigid, and authoritative prescription. The legal norm establishes only a model of relations in which social interests must be correlated with the interests of society members, and alongside this, law widely uses such means of influencing people’s behavior as stimulation, encouragement, granting rights, etc. It is argued that to transition to the definition of legal regulation, it is necessary to refer to the theory of law, which provides explanations for the concepts of “legal influence” and “legal regulation”. Legal influence is considered a broader concept, as it includes the normative-organizational influence on social relations not only through a system of special legal means (those that directly regulate these relations – legal norms, legal relations, acts of implementation and application of law), but also through other legal phenomena – legal consciousness, legal culture, legal principles, law-making process, etc. A proposed definition states that legal regulation is the authoritative influence on social relations carried out by the state through all legal means for the purpose of their organization, establishment, protection, and development. Besides such (regulatory) influence, law also exerts a spiritual-ideological influence on individual and social consciousness (both in the process of legal regulation and beyond). “Restrictions” and “prohibitions” as legal categories have been analyzed. The etymology of the words “restriction” and “prohibition,” their relationship to each other and to adjacent and synonymous concepts, have been explored, and an original interpretation of the content and essence of these concepts has been proposed. A number of features characterizing restrictions and prohibitions as legal categories have been identified (defined in normative legal acts; established to prevent potential abuses of law; associated with a “narrowing” of an individual’s legal status; presuppose a specific model of behavior, specifically restrictions entail active behavior, meaning to do only what is defined within limits; prohibitions entail passive behavior, meaning to refrain from doing prohibited actions; they perform a protective function in social relations; non-compliance with them is accompanied by a negative response from the state. The concept, characteristics, classification, and a systematic analysis of restrictions and prohibitions as means of legal regulation have been defined. Based on the analysis of dictionary, reference, encyclopedic literature, as well as specialized legal sources, the article formulates original definitions of “restriction”. The specificity of these particular restrictions and prohibitions lies in their special area of application (they apply to individuals when exercising their powers within the civil service); they apply to specific subjects (directly to individuals who have the legal status of civil servants); their application is determined by a special purpose; they are characterized by specific, comprehensive normative legal regulation; their application is ensured by state coercion. Distinctive features inherent to restrictions and prohibitions in the field of legal regulation have been identified: individual character; preventive nature; limiting aspect; coercive nature; the presence of a special subject; connection to professional activity; relation to delict norms, and their essence has been explained. The normative basis for defining and applying restrictions and prohibitions as means of legal regulation has been characterized (substantive legislation, procedural legislation, sub-legislative normative legal acts). A classification of restrictions and prohibitions has been conducted, and it is proposed to conditionally divide them into three groups (personal, property, and mixed).