The Legal Regime in Modern Legal Doctrine: from the Legal Chimera to a Narrow Understanding

Utyashov Eduard PhD in Law Associate professor, Department of Theory of State and Law, Gubkin Russian State University of Oil and Gas  119991, Russia, Moscow, Moscow, Prospekt Leninsky str., house 65, building 1, sq. department ueknet@rambler.ru Other publications by this author

The rapid development of public relations in recent decades has involved a significant number of new and new objects of legal relations in the sphere of legal regulation, which were unthinkable until quite recently. An example of this is technologies in the field of the Internet, digitalization, including cryptocurrencies, the emergence of artificial intelligence, genomic engineering and much more. Legal science, as a superstructure phenomenon, must respond in a timely manner to these and similar emerging phenomena of the objective world, and promptly offer law-making bodies the appropriate ordering of emerging social relations. In the course of searching for ways to improve legal regulation, new doctrines are being formed, new legal constructions are being put into circulation, legal categories and definitions are being filled with additional content. The previous attitudes are gradually being reinterpreted and filled with more progressive content corresponding to the level of development of society, the dominant political and legal views. These trends are accompanied by a broad scientific discussion that allows us to identify the most complex, acute issues of legal science, an attempt to find common and special in contradictory points of view on certain legal phenomena.

All of the above fully applies to the fairly well-established category of legal regime in domestic jurisprudence. Since the nineties of the last century, since the formation of the legal system of the new Russia, the growth of scientific research on this phenomenon of law has grown significantly.

Thus, the analysis of scientific publications in the electronic catalog of the specialized legal scientific library of the SPARK publishing house, which had the phrase "legal regime" (or synonymous – "legal regime") in the title for August 2022 shows a significant number of them – 5149. According to the catalog of the electronic scientific library www.elibrary.ru . for the same period of time there are 22888 works with this subject. An analysis conducted in October 2015 by A.V. Malko showed that in the 90s there was an increase in the popularity of "regime" titles of scientific publications in arithmetic progression; and since 2000 and 2010 there has been a sharp (eight-fold) increase in the "demand" for the name "legal regime" in the publications of lawyers [1. p. 218]. A.V. Malko calls such a scientific phenomenon, in the form of scientists' predilection for excessive and unreasonable use of the term "legal regime", a "chimera". Referring to Grevtsov Yu. I. and Khokhlov E. B., defining it as a verbal construction that has exclusively its own attractiveness and value, "something that externally exists, but does not have any real grounds for its existence", a meaningless "magnificent scientific verbal design", which is characterized by "active going beyond the boundaries of the proper legal matter" [2. p.4].

From a scientific point of view, this trend is explained by the fact that the understanding of the legal regime is based on the established vision of it as a special, special order of legal regulation. Apparently, it is this approach that underlies the works of those authors who write about the legal regulation of relevant public relations, believing that once there is a subject, then it should have certain features. If there are some features that exclude them from the general order of regulation, then this is the "legal regime". From this point of view, the appearance of scientific works devoted to the "legal regime of marital property", "legal regime of settlements", "legal regime of residential premises", "legal regime of animals", "legal regime of the Moon", "legal regime of amateur and sport fishing", "experimental legal regime is fully justified and justified" and many others.

Such an understanding of the legal regime has quite understandably influenced the law-making and, above all, the legislative activity of state bodies in modern Russia. The content of this category is reflected in the title of a significant number of regulatory legal acts or their sections, chapters, articles: "The legal regime of the property of the wards" ^[3], "The legal regime of the territories of traditional nature use" ^[4], "The legal regime for the protection of natural objects" ^[5], "The legal regime of free trade" ^[6], "The regime of work and rest of workers" ^[7] and many others.

A biased study of the meaning and content that scientists put into the category under study allows us to identify several conceptual approaches that boil down to the following.

The legal regime is a special order of legal regulation, expressed in a certain combination of legal means and creating the desired social condition and a specific degree of favorability or unfavorability to meet the interests of legal entities [8. pp.17-18].

This is a special procedure for the activities of state bodies, public institutions, and citizens' lives, in which the powers of authorities are redistributed, the rights and freedoms of citizens are restricted, additional duties are imposed on legal entities and individuals, which are determined by the danger to society and the state of a particular crisis situation" [9. pp. 68-69].

The legal regime is the social regime of the object, fixed by legal norms and secured by a set of legal means. The criterion for classifying the procedural side of legal regimes is the breadth of coverage of legal relations, the degree of development and the level of regulatory regulation [10. p. 289].

This is the final result of the regulatory impact on public relations of systems (a certain set) of legal means inherent in a particular branch of law and ensuring the normal functioning of this complex of public relations, i.e. the rule of law [11. p.123].

This is a system of conditions and methods for the implementation of legal regulation, a certain "schedule" of the operation of law, necessary for the optimal achievement of relevant goals [12. P. 13].

There is a certain system, a set of certain phenomena designed to ensure the achievement of the goals of legal regulation (including the unhindered realization of the interests of legal subjects) [13. pp. 26-31].

A special combination of legal instruments (legal means) enshrined in the norms of law, characterized by the presence of certain conditions, the concreteness (certainty) of public relations, relativity to a certain object and pursuing a favorable, useful goal for the state and society [14. p. 213].

The legal regime is a system of law. These are actions, relations regulated by law, for the existence and development of which a system of legal means of influence is used (stimulation, licensing, control, coercion, etc.). Within the framework of this approach, the concept of a legal regime "almost coincides with the concept of a system of law, if it is considered from the point of view of the relations of citizens, organizations in connection with certain objects". Thus, the concepts of "legal regime" and "law in the objective sense" seemed very similar in content [15. p. 328].

The legal regime is an institution of law [16. 231]. Proponents of this approach write that "it should be noted that the institution of martial law, like other special administrative and legal regimes, should be considered not as a means by which violations of the rights and freedoms of citizens occur, but as an integral part of state-legal means designed to ensure the strict implementation of the interests of the state and society by limiting individual rights and freedoms of the individual".

Realistic understanding of the legal regime as a characteristic reflecting not only the normatively programmed by law-making bodies, but also the real degree of security of the rights and legitimate interests of subjects in certain areas of public relations. Where regulatory means and their combinations, complexes act as a reference point, coordinate systems for the study of the real state of their use in legal life [17. p.84].

The totality of all positive legal prescriptions contained in imperative and dispositive norms, and subjective legal claims based on them (or not contradicting them), existing and valid from the point of view of law and, where appropriate, defining the rights, obligations, permits, prohibitions and prescriptions of absolutely all persons (or in relation to absolutely all persons) about the subject (phenomenon) in respect of which they are established" [18. p. 140].

There are other views on the content of the "legal regime", in which the above-mentioned are enriched with additional features, goals or other features, but they do not have fundamental differences from those mentioned.

A comprehensive analysis of the advantages and disadvantages of the whole variety of approaches to understanding the "legal regime" in Russian science, a consistent consideration of each of them, is objectively impossible in the scope of a scientific article, and it is unlikely that it will bring something new, given the already existing fundamental works on this issue ^[19]. All this only allows us to conclude that there is no general, universal doctrine of the legal regime in Russian science today. The identification of its specific features, structure, means and methods is ambiguous due to the versatility and multidimensional nature of this category.

However, it is important to emphasize the following. On the one hand, the breadth of views on the concept of the content of the "legal regime" enriches science, allows us to isolate the most important provisions, according to researchers, deepens the subject of legal regulation, allowing us to determine the features of managerial decisions, the specifics of emerging legal relations, saturates it with general legal and industry-specific legal tools. The compromise that has developed to date, the willingness to recognize the well-known validity of alternative points of view, finds expression in the fact that modern domestic jurisprudence avoids a single, universal definition of the legal regime, preferring to it the ambiguity of the term and emphasizing some of its conditionality and relativity.

On the other hand, due to the fact that the category under study becomes the basic, basic unit of the categorical apparatus of jurisprudence, it is necessary to search and develop a unified methodological approach to its content. And although the requirement of unity (unambiguity) of legal terminology is not interpreted as universal and absolute, nevertheless, ambiguity, ambiguity of legal formulations, is fraught not only with scientific errors, but also with serious shortcomings in the rules of legal technique [20. p. 304], problems in law enforcement and, ultimately, in the formation of the rule of law. The accumulated volume of available research on this issue is huge and requires the scientific community to come to a common understanding of this legal phenomenon.

As already noted above, the legal regime at present, due to the ambiguity of its terminological content, is identified with a special order of legal regulation, which, when implemented in various spheres of public relations, has its own specific features and peculiarities.  This is due to the presence of its own subject of legal regulation, goals, sources (forms) of law, practice of legal realization, features of the content and presentation of legal norms, specifics of regulatory methods, emerging legal relations and all that is commonly called legal means. This view allows today's researchers to boldly use the term "legal regime" instead of the phrase "legal regulation". Because of this, there is a "blurring" of the conceptual apparatus.

The legal regime, undoubtedly, is a special kind of legal regulation, but its peculiarity and existence is due to the inability to streamline the social relations that have arisen in the usual, current course of development of socio-economic and other relations. That is, it is applicable only when the state, due to the peculiarities (emergency or significance) of the circumstances and goals that have arisen, is ready to sacrifice the rights and interests of the whole society or its part, for the sake of resolving an extremely important issue for it, on which its very existence or successful progressive development depends. This approach significantly narrows the range of public relations that need legal regulation with the help of a "legal regime". Such regimes include martial law, state of emergency, counter-terrorism operation, quarantine regime in epidemic conditions, most favored nation regime, free economic zones, etc.

Based on this understanding of the "legal regime", the following characteristic, essential characteristics and elements can be distinguished.

Firstly, the subject of regulation of the legal regime is extensive public relations, affecting in their entirety the spheres of constitutional law, executive and administrative activities of state authorities, property and personal non-property relations. The State and its bodies, in order to achieve optimal regulation of public relations in critical or unpredictable periods of time, may allow certain deviations from the general order of regulation. In some cases, the legislator should anticipate the possibility of such situations in advance and provide for the relevant legal norms, formulate and justify the principles of law that will act as a regulator of such a specific subject of legal regulation. For example, relations to ensure military security and sovereignty, restore constitutional order, eliminate the consequences of natural disasters, eliminate illegal armed formations, prevent mass epidemics, create zones of stimulating economic development, gambling zones and other similar social phenomena.

The definition of the subject of regulation of the legal regime is particularly important and relevant, this makes it possible to distinguish it from the specifics of the legal regulation of turnover or the legal status of any thing or other object of legal relations. Quite often, authors using the term "legal regime" link its existence not with the subject of legal regulation, but with the object of legal relations, i.e., what its participants enter into legal relations about, are endowed with subjective rights and legal obligations. This approach finds its expression in the use of this term in a combination of expressions "the legal regime of a bank guarantee, apartment, settlement, information, land, subsoil", etc. works. An object is what the activities of certain individuals are aimed at in an individualized way, i.e. it is a piece of social relations that is more specific. It represents in the system of social relations an element (a unit of the common) about which subjects interact.

Secondly, the mandatory subject of legal relations arising in the implementation of the legal regime is the State, represented by its bodies and officials. The presence of their specific powers and the possibility of granting additional rights and responsibilities in accordance with the current legislation, allows public authorities to promptly and rationally solve exactly those tasks that arise during the implementation of the legal regime. From this point of view, the position of those authors who believe that citizens, their associations, and legal entities can create appropriate legal regimes for themselves within the framework of existing legal norms is controversial. It seems unacceptable to establish a legal regime by entities other than the State.

Thirdly, the purpose of the implementation of the legal regime is to ensure the onset of the desired positive social effect, or the restoration of the state preceding before its introduction, by overcoming (eliminating) the obstacles that have arisen or creating certain additional preferences in relation to a limited territory or a certain category of subjects of law. The legal regime, therefore, is not just a special order of legal regulation, which is carried out constantly and is expected, but a special one, which is necessary in extremely important situations for the state and society, when this particular situation cannot be resolved by conventional means and methods.Unlike the legal regime, the purpose of legal regulation is to involve certain public relations in the scope of law, to give them stability and manageability. S. M. Petrov adheres to the scientific view that the purpose of the legal regime is to overcome (eliminate) obstacles in the implementation of legal regulation, noting that the legal regime is aimed at overcoming negative phenomena in the relevant sphere of public administration [21. P.468]. According to G.S. Belyaeva, "the single (complex) goal of legal regimes, based on their essence, can be recognized as the optimal regulation of public relations, overcoming obstacles standing in the way of satisfying their interests by subjects (legal means and methods), creating a favorable regime for lawful actions and an unfavorable regime for illegal ones" [22. P. 11]. In the same way, obstacles to current legal regulation are eliminated when creating stimulating legal regimes by providing certain preferences to participants in legal relations.

However, removing obstacles (creating incentives) in legal regulation is not the ultimate goal of the legal regime. This is only his "intermediate" or preliminary task. The main purpose of the legal regime as an element of legal regulation is to restore the rule of law that was carried out in society before its introduction, or more significant and valuable for society.

Fourth, the legal regime is, to some extent, an exception from the general, current process of legal regulation, due to the need to eliminate obstacles in its implementation. V.I. Chervonyuk noted: "the originality of the technical and legal techniques used allows us to highlight the exclusion regime intensively applied within the framework of law-making policy, which is introduced by the subject of law-making as an exception from general order" [23. p. 319]. In this regard, the limits and limits of its operation are inherent in the legal regime. They are determined in space, by the subject composition and the time of its action. Thus, martial law can be imposed both on the entire territory and in individual localities that do not necessarily coincide with the administrative-territorial division of the state. The establishment of the legal regime of free economic zones is associated with the geographical location of the territory, economic benefits for potential investors. The determination of the part of the territory on which the legal regime will be implemented is conditioned by political, economic and other expediency, which allows achieving the effective implementation of the goals of the legal regime.

In conditions when there is an objective danger to the existence of society and the state, it is necessary to mobilize, concentrate the forces, means and resources of the state, it is quite reasonable that it can restrict the rights and freedoms of certain subjects for a certain period of time. Restrictions on subjective rights are not disputed by international law, which allows for the possibility of their implementation if they ensure due recognition and respect for the rights of others; they are aimed at meeting the just requirements of morality, public order and general welfare in a democratic society [24. Article 29]. When implementing legal regimes, new entities may appear that have a legal status that did not exist before its establishment, for example, internally displaced persons, refugees, combatants, etc.

At the same time, when implementing preferential legal regimes: the most favored nation regime, free economic zones, participants are provided with additional preferences, in the form of preferential taxation, simplified registration procedures, customs privileges, etc. The subject composition of participants in the legal regime may have certain advantages in the exercise of their powers.

State bodies, as participants in legal regimes, may, on a legal basis, redistribute their powers among themselves, or limit them in the interests of the purposes for which the relevant legal regime is being implemented.

The effect of the legal regime in time provides for its establishment in connection with the appearance of the grounds for its implementation and cancellation after their elimination. It is initially temporary in nature and its effect is designed exclusively for the period that is objectively necessary to eliminate the reasons for its introduction. Similar time limits should also exist in stimulating legal regimes. These regimes are a kind of models for checking the effectiveness of legislation aimed at encouraging economic activity, social development, and the further possibility of their extension to the entire territory of the state. Therefore, in the long term, they cannot last long, as they put other participants in such relations in unequal conditions, this would contradict the most important principle of equality of all before the law.

Due to the specifics of the circumstances that have arisen, for the elimination or creation of which the legal regime is carried out, it must have time limits for its beginning and completion. Otherwise, the legal regime may go from a special, "extraordinary" stage to a "chronic" one, when it is no longer distinguishable from the current legal regulation.

Fifth, the legal regime presupposes both the presence of restrictions and a system of incentives, legal advantages and preferences [25. p.184], which create a certain degree of favorability. The implementation of a relatively short-term withdrawal from the general order of legal regulation, the imposition of restrictions on the rights and freedoms of citizens, the imposition of additional duties on them implies the need to further provide these participants with certain preferences and benefits. By applying a system of legal advantages to the subjects of legal relations who participated in legal regimes, the state thereby equalizes their statuses with persons not involved in the relevant regimes, replenishing the volume of violated or restricted personal and property rights, albeit with the expiration of a certain time. There is a return of public relations involved in the legal regime, in particular their subjects, to the usual normal course of legal regulation. Such an approach will be a legal incentive – an incentive to law-abiding behavior in a legal regime. This is most clearly observed by the example of benefits and compensations in relation to participants of the Great Patriotic War, persons injured as a result of the Chernobyl accident, etc. Even more clearly, the system of incentives and benefits is reflected in preferential legal regimes, which follows from their name. For example, the regime of a special economic zone provides for the granting of exemption from customs duties by business entities, thereby encouraging the economic interest of these participants in legal relations.

Sixth, the norms of legal regimes aimed at eliminating possible obstacles to the implementation of current legal regulation are characterized by a sufficient degree of abstraction, relative certainty, since the legislator is objectively unable to foresee all the factual circumstances that may arise during their implementation. It is believed that the norms of law do not set goals for the formation of relatively new, independent types of public relations, but act as prerequisites for the consolidation of actual relations [26. p. 638]. However, in relation to legal regimes, the norms of law create a hypothetical (including taking into account the past) general model of possible legal relations, without specifying their content, which sometimes complicates their implementation. Therefore, along with the norms of law contained in the legislation, other (forms) sources of law are used in their regulation: legal customs, contracts of normative content, principles of law. In the Russian Federation, this is reflected in the legislation on martial law, on internally displaced persons, the protection regime, on the protection of the population from natural and man-made emergencies, and other acts.

Seventh, the inevitability of the implementation of individual regulation in the conditions of the legal regime. The presence of evaluative concepts, the relative certainty of legal norms, "the lack of sufficient qualitative and quantitative characteristics in them about the conditions of their implementation, the rights and obligations of specific participants in legal relations, requires additional individual regulation of public relations" [27. p. 420]. This is a type of lawful activity carried out at the stage of implementation of legal norms by legal entities, aimed at resolving specific situations on their basis, with an element of free discretion, within the boundaries of these norms. Individual regulation will be carried out in the course of casual interpretation, law enforcement and other acts of legal realization, including the conclusion of contracts.

Eighth, the grounds for the implementation of legal regimes should be, provided for in the legislation, special legal (factual) compositions that are of the nature of a possible or real danger to the normal course of public life, hindering the current course of legal regulation.  The fact of their establishment is assigned to the relevant state bodies, which notify the company of their occurrence in the relevant legal act. For example, in accordance with the Law of the Republic of Armenia "On the Legal Regime of Martial Law", such grounds are: an armed attack, an immediate threat of this or a declaration of war [28. Article 27]. Article 87 of the Constitution of the Russian Federation calls "aggression against the Russian Federation or an immediate threat of aggression" grounds for the introduction of martial law. Such grounds for establishing appropriate legal regimes should be obvious to both society and public authorities. Their indisputable existence, and not so much an estimated, hypothetical vision, is due to the implementation of restrictive measures in the future, the use of specific techniques and methods of the legal regime. Therefore, their consolidation in the relevant norms of law should be sufficiently clear, clear and unambiguous.

For preferential legal regimes, such circumstances will be stimulating goals of socio-economic development of a particular territory or branch of the economy, which are quite specifically defined by the relevant regulatory legal act.

Ninth, unlike the usual legal regulation, the legal regime provides for special measures of state coercion. They are connected not only with the administrative sphere of legal regulation, but also affect the sphere of constitutional legal relations (restrictions on elections and referendums), property relations (special turnover of property, requisitions, restrictions on the alienation of property), personal rights (restrictions on the choice of place of residence and stay, inviolability of housing) and others.  As one of the varieties of state coercion, legal liability will also have its own characteristics. Its application, on the one hand, will be limited to a wide range of circumstances excluding it (force majeure, necessary defense, extreme necessity, reasonable risk, execution of an order), and on the other – the establishment of new elements of offenses that could not exist in the normal development of public relations.

When implementing preferential legal regimes, some types of legal liability will be legally limited in relation to participants in these legal relations. This concerns changes in the composition of offenses in the customs and tax spheres [29. Article 16].

Tenth, the legal regime should provide for a set of means, not only legal, but also organizational, executive, organizational, technical, financial content, including including a list of measures that will ensure the implementation of the objectives of the legal regime. This is necessary so that when determining ways to achieve the goals of its establishment, law enforcement agencies, first of all, know about the means provided to them by the legislator and within which they can act. The absence of such a list will force us to wait for their formation and approval by the relevant competent authorities, at a time when the actual grounds that have come urgently require their solution. A number of authors, referring to S.S. Alekseev, write about the need to establish an exhaustive list of such events, since this allows achieving a high degree of accuracy in regulating social relations, delineating strict limits of behavior of participants in organized relationships, eliminating uncertainty in regulation (for example, disputes about competence, etc.) [30. C. 37]. This is true, but only partially. Such a list is more applicable to preferential legal regimes. As for the "extraordinary" legal regimes, the legislator avoids limiting them. For example, Article 8 of the Federal Constitutional Law "On Martial Law" ^[31] is set out with the possibility of its wide application: "measures may be provided for the introduction of temporary restrictions on the implementation of economic and financial activities, property turnover ...". Article 2 of the Federal Law "On Countering Terrorism" ^[32] contains an expansive the list of measures in the implementation of the counter-terrorism operation regime: "systematic and comprehensive use of political, information and propaganda, socio-economic, legal, special and other measures to counter terrorism." On the one hand, the authors who defend the point of view of an "exhaustive" list of measures are right, since otherwise contradicts the principles of the rule of law, the restriction of the state from possible arbitrariness, violation of human rights and freedoms. On the other hand, if the factual circumstances that may arise during the implementation of a number of restrictive legal regimes (emergency disasters, pandemics, martial law) are unclear, it is impossible to clearly formulate legal prescriptions, which, therefore, are of an estimated, relatively definite nature. Therefore, it is impossible to formulate an exhaustive list of activities carried out under such regimes.

Eleventh, the legal regime is a typical model of legal regulation in special conditions, which assumes the content of a certain algorithm, the sequence of implementation of legal means aimed at achieving its goals. According to A.V. Malko, "this is not so much a result as a system of conditions and methods for the implementation of legal regulation, a certain "routine" of the operation of law necessary for the optimal achievement of relevant goals, including legal policy" [1. P. 218]. It should be recognized that the availability of methods, a certain sequence of implementation of the system of legal means allows us to talk about a certain standard model or legal structure of the legal regime. So T. V. Kashanina believes that the legal construction: "this is a model of social relations created with the help of abstract thinking (its typical scheme), the elements of which are rigidly interconnected" [33. P. 189].

The same view on the coherence and consistency of the content of the legal structure is held by V. V. Chevychelov, who believes that this is a means of legal technique, consisting in modeling, a certain logical construction of normative material [34. pp. 8-9].

Based on the analysis of the legal regime as a general theoretical category, it can be concluded that only a complete detailing of all elements and properties is able to give it terminological unity, scientific stability and practical clarity for the addressees of the legal regime, to ensure the unconditional implementation of its prescriptions.

Summarizing the above, we should come to the following conclusions. 

In the domestic legal science, the absence of an established general doctrinal understanding of the category of legal regime, due to the multidimensional and multifaceted nature of its content, the use of various methodological approaches to the study of this phenomenon of law, has given rise to ambiguity and ambiguity of legal formulations. Such scientific dissonance is fraught not only with scientific errors and serious shortcomings in the rules of legal technique, but also with problems in law enforcement and, ultimately, in the formation of law and order.

The multiplicity of theoretical views on the phenomenon of the legal regime predetermined the emergence of a negative scientific trend – its incorrect, excessive use in the implementation of a number of research branch works in order to give them special significance and relevance. The use of the indisputable authority of the term legal regime due to its unconditional recognition by the scientific community, blind worship in front of it is nothing but a legal fetish^[1].

Based on the analysis, it should be concluded that the legal regime needs to be understood much narrower than it is reflected in the diverse approaches that exist today in science. In a narrow sense, it is a limited in scope and time, an exception from the general order of legal regulation, due to the need to implement legal measures and means provided by the state, with the predominant use of certain methods, to eliminate the actual circumstances hindering its current implementation (or the creation of favorable conditions), in order to ensure the desired law and order.

Such a vision of the legal category under study will allow us to perceive its content in a narrower sense and to abandon excessive and unjustified use, both in science and in the rules of legal technology.

^[1]The dictionaries of Ozhegov S.I. and Ushakov D.N. emphasize the French origin of this word, meaning a deified thing or something enjoying indisputable authority, an object of unconditional recognition, blind worship.