liability: basic approaches to its concept in modern jurisprudence
Legal liability is one of the most traditional, fundamental and debatable issue in legal science. The process of discussion has been influenced not only by the conclusions in jurisprudence, but also in philosophy, psychology, and sociology. Apparently, this explains the fact that, despite the large number of papers devoted to the problem of liability, a common point of view on the concept of "liability" has not yet been found. And the debate is being continued, not only in science but also in the academic literature. The existing disagreement on the question of the concept of legal liability, on the one hand, is the result of active search of creative scientists, on the other - a testament to its complex content, the underlying properties of its essence.
If one takes the methodological aspect of the problem, there is now a shift away from monism in the research of liability. However, there is a looseness of methodological positions of some of its researchers, attempting to explain complex aspects of the problems by subjective view on this or that side of it. And especially contradictory approaches are seen in how to understand the liability: only as a phenomenon of the past events (actions) or the phenomenon of perspective content. Hence, there is the existing two-pronged sense of liability: the liability for the actions (for the past), or liability for the future. From the position of the first approach, the liability is the punishment for the offense; sanction for violation of the rules established by law; enforcement liability; enduring unfavorable consequences provided by the sanction of the violated norm; obligation to pay the penalty; special protective legal relationship, etc.
From the standpoint of another approach the legal liability is a positive liability; the need to make defined actions, not just punishment; the ability to operate in defined-certain direction; active positive obligation; duty arising from the legal regulations, etc.
Authors who do not recognize the existence of positive legal liability consider that it is devoid of legal content, refer it to the category of duty or sense of justice. For example, N.S. Malein argues that proponents of positive legal liability output it beyond the law. A.S. Shaburov believes that the problem of positive legal liability not only does not fit the theory of legal liability, but generally is beyond the legal category. V.M. Baranov thinks that the fact that the concept is fixed in the legislation does not make the expressed phenomenon legal. Summing up all the objections to the category of positive legal liability, one can say that its opponents are considering a positive liability as a moral responsibility, on a par with the existing law.
Nevertheless, one must admit that the positive liability is an element of not only moral, but also legal system, it is quite clearly provided for in the current legislation. We agree with N.I. Matuzov that a positive liability cannot be approached by negative measures, since from these positions it cannot be understood. Positive liability is a special phenomenon, expressing different connections and relationships, respectively, there are to be applied and the other assessment criteria.
At least it is clear that the positive legal liability is an essential element of the legal status of a person, official, team. In determining the legal status of these subjects of law the legislator foresees who should be responsible for the proper execution of certain legal actions. For example, the status of head of state body assumes responsibility for the proper fulfillment of the functions within its competence. In accordance with Art. 8 of the Federal Law "On Bailiffs" Chief Bailiff of the Russian Federation "shall be responsible for the execution of the tasks entrusted to the bailiff service under the legislation of the Russian Federation." Article 3 of the Presidential Decree "On measures to strengthen discipline in the civil service" states: "The leaders of the federal executive bodies and heads of executive authorities of the Russian Federation shall be personally responsible for the state of executive discipline in the relevant federal executive bodies and executive bodies of subjects of the Russian Federation ". Art. 6 of the RF Law "On the Audit Chamber of the Russian Federation" states that the auditors themselves solve all the issues of organizing the activities of their areas and are responsible for its results." Similar provisions on responsibility for the forthcoming activities exist in other legal acts of the Russian Federation.
Thus, we can state that the existed for many years definition of legal liability as the liability for the actions, for the past, is in contradiction with the actual legislative practice and the real legal relationships part of which are many subjects of law. Most likely one will have to take greater account of the position of those who propose to understand the legal liability not only as punishment, sanction, but as a necessity of fulfillment of active actions arising from the legal status of subject of law.
Set by the state liability for compliance with legal regulations, the functional responsibilities is a special kind of responsibility that exists and acts as an incentive for good behavior as a requirement to be active within the legal framework established for the implementation of duties. V.M. Gorshenev called such liability statutory liability, and it is impossible to disagree. The subjective aspect of positive liability is inextricably linked with the motivation of positive, socially useful lawful acts. Among them there is not only the awareness, proper understanding by the subject of law of his duties, but also a certain ratio to these duties, which is characterized as an attempt to perform the assigned work well to achieve a positive result. In this regard, A.I. Kozhevnikov is right who believes that the subject of positive legal responsibility is a subject of law carrying out activities, due to its legal status, who is prescribed by law active legal behavior to achieve positive results of this activity.
The above gives rise to the conclusion that the problem of legal liability requires deep and comprehensive study that can be done only through an integrated approach and the joint efforts of the humanitarian and legal sciences. Today it is obvious that the legal liability is a complex institution, with a complex structure and various manifestations, taking a special place in the legal system of a society.
Justification of positive legal liability involves the formation of new theoretical concepts in the general theory of law and theory of branch sciences. This is not the modernization of previously expressed point of view of the "possibility" of liability but the concept justifying the existence of real liability, consistently implemented in an active form.
The legal liability is too intertwined with general social and legal aspects. Therefore, the search for their combination is perfectly justified. We cannot ignore the fact that between liability in a positive and in a negative sense, there is dialectical unity of opposites.[1] Dialectics regards external oppositions not as originally separate entities, but as a result of a split of single, ultimately as derived from the internal.
Opposites are not only mutually exclusive, but are in indissoluble unity, interpenetration.
The authors’ desire to recognize the positive legal liability as liability for the implementation of the guidelines of the law, the proactive, proper implementation of the legal obligations and the reasonable exercise of rights is intended to raise the prestige of the legal norms and regulations contained in them, which in turn leads to the strengthening of the rule of law.
However, in order not to reduce the performance of a legal obligation to legal liability a different approach to this controversial issue is offered. It is possible, in particular, to distinguish between positive legal liability and legal duty. For example, N.I. Matuzov binds statutory liability (referring the latter to positive) with the implementation of the moral and legal duty.[2] [3] The legal duty is based on a high sense of justice, writes R.L. Kha- chaturov and D.A. Lipinski, consequently, it does not manifest in all subjects of legal liability. Making by subjects of liability socially significant actions on the basis of a legal duty is a fact of reality.[4] The idea of the introduction of the concept of "legal duty" into conceptual doctrine by a series of scientists of the legal liability is supported by A.S. Mordovets. The duty he writes is an objective liability. However, the duty has more specific character.[5] It seems that such a distinction would help to resolve the dispute about the legal liability in an active and retrospective sense (for positive and negative liability).
The duty in the broadest (ethical and sociological) aspect is to act in accordance with objective historical necessity. The legal duty is respect for the law, to act according to the principles of law, the spirit of the law, including the provisions of existing law, it is connected to the law through the legal and moral consciousness.
In science, it was rightly pointed out that the public duty as high requirements of morality, may take the legal form. In law, there are articles prescribing citizens to fulfill a civic duty honestly and conscientiously, it often indicates certain types of debt: military, service, professional; the legal measures are established to encourage individuals who have shown good faith, dedication and heroism in the performance of duty, the liability of citizens who neglect their duty is provided, etc. In many cases, the performance of civic duty is not only a moral requirement, but also a legal principle, a legal duty of citizens. In this form, the public duty of the citizens is enshrined in the law at different levels from the Constitution to the decisions of local authorities (for example, appeals to citizens to comply with the order in public places).
In a democratic state and society both law and morality play a special role in the regulation of human behavior. Therefore, the duty can be manifested as a moral requirement, and as a legal principle, and as a legal obligation. This approach allows to put a civic duty in direct connection with all the other elements of the legal status of citizens of both the liabilities and the law.
The legal duty is a moral and legal category, and thus it differs from the legal obligation implemented in enforcement legal relationships - in fact a legal category. Actions in accordance with the legal duty are not compelled by duty but committed by conviction in the correctness and reasonableness of the law.
The fact of the closest relationship of the law with duty can be confirmed referring to those legal acts, where the conceptions duty and obligation are used as equivalent. For example, Art. 59 of the Russian Constitution states: "National defense is the duty and obligation of citizens of the Russian Federation." This example shows that the legal duty is an objectively existing phenomenon, and at the same time indicating that the concept of a legal duty is of all the least developed in jurisprudence. Therefore it waits such studies in perspective.
- [1] Alcxeyev S.S. also sees some similarities in existing of negative and positive liability. Hebelieves that the legal liability is the original kind of moral and political responsibility, whichcovers active and retrospective aspects. Moreover, in his opinion, and in its active aspect, itrelates to the law, as includes the perceived need for a conscious and strict compliance withenforcement of legal obligations (S.S. Alekseev. Problems of the theory of law, vol. I, p.371).This idea was expressed by the author in 1984 and received support in the legal science. (N.l.Matuzov, A.S. Mordovets, D.A. Lipinsky, KhachaturovR.L. et al.)
- [2] See: Matuzov N.I. The legal system and personality. Saratov, 1987, p. 214.
- [3] 2 Sec: Khachaturov R.L., Up in sky D.A. The general theory of legal liability. St. Petersburg,2007, p. 135.
- [4] p.232.
- [5] Mordovets A.S. Socio-legal mechanism for ensuring human and civil rights. Saratov, 1996,
