Once again about the Method of Administrative Law

Kurakin Aleksei Valentinovich Doctor of Law Professor at the Department of Administrative and Information Law of the Financial University Under the Government of the Russian Federation 125993, Russia, Moskva oblast', g. Moscow, ul. 125993, Moskva, Leningradskii, 49 kurakinaleksey@gmail.com Other publications by this author

The article was prepared with the information support of the company Consultant Plus    

The question of methods of legal regulation is a question of the quality of such regulation, in this regard, one can see a direct dialectical relationship between rulemaking and the application of legal norms.

Branches of law differ among themselves by means (methods) of legal influence. Some branches of law use mainly coercive (imperative) methods of legal influence, expressed in state coercion (responsibility), in particular, criminal law is such a branch of law, of course, we can also talk about incentive or permissive norms in this branch of law. The relevant norms allow or stimulate certain behavior and this is reflected, in particular, in the mitigation of punishment or the exclusion of its use at all. Nevertheless, these norms within criminal law are far from being of paramount importance, although they are also functionally necessary. As D.A. Garbatovich noted, "... permission as a method of criminal law regulation consists in granting the right to a person to commit acts having criminal legal consequences. For example, a person is granted the right to cause certain harm to interests protected by criminal law in circumstances that exclude the criminality of the act" ^[1].

As we are provided with a very exotic method of legal regulation for criminal law, however, it is objectively necessary (Chapter 8 of the Criminal Code of the Russian Federation). There are branches of law where the key method of legal influence is permission, permitted behavior, in many cases does not require special legal permission, and in some cases such permission must be obtained and only after that certain actions are allowed. However, it should be borne in mind that "free permission" is still a conditional category. As they say, "it is impossible to live in society and be free from society, or to neglect its interests or values." And therefore N.I. Matuzov is right, stating the thesis that "... the principle of "everything that is not prohibited is allowed" presupposes a certain prudence, reasonableness, responsibility. Its practical implementation requires at least compliance with the rules of behavior accepted in any society, the norms of public morality, the ability to correlate their personal and public interests; a correct assessment of those life situations in which the subject finds himself; legal awareness, as well as a proper degree of moral and legal consciousness" ^[2].  

There are different points of view regarding such a category as "method". In particular, the method as an institutional category is revealed from the standpoint of management theory. Thus, A.P. Korenev notes that "... methods of public administration are understood as techniques and methods of influencing the subject of management on the object of management, and such influence is used to achieve goals, objectives, management, as well as the implementation of management functions" ^[3].  The approach to defining the method as a means of influence is quite widespread in the scientific literature. K.S. Belsky writes that "... the method as a concept is semantically connected with a number of words that are to some extent similar or subordinate to it, so these words include: "method", "means", "reception", "impact" ^[4].

Of course, you need to understand that the meaning of the word "method" varies depending on the context of its use, the method as a means of management is one thing, the method of legal regulation is another, and the method of cognition is another semantic meaning of the designated category. Therefore, in each specific case, it is necessary to understand the meaning and meaning of the designated category (method), and the functionality of its use. So, methods of cognition are, first of all, a scientific category necessary for obtaining new information, new knowledge, from the past, present, and even the future. The methods of scientific knowledge are diverse, they have nothing to do with management issues or the problem of legal regulation. As I.S. Samoshchenko and V.M. Syrykh noted at the time, "... the question of the method of legal science is, first of all, the question of the correlation of various cognitive techniques in which it receives concretization, as well as development in relation to the specifics of state–legal phenomena" ^[5].

Regarding the method of cognition, K.S. Belsky, correctly, noted that "... the method of cognition is the effect of a cognizing subject on a cognizable object using previous ready-made knowledge in order to obtain new ones" ^[6].   

Without delving into the question of scientific methodology, let's pay attention to the method of legal regulation. It should be noted that the method of legal regulation, first of all, this category is doctrinal, but it is necessary to understand the current legal norms, as well as their functionality. The subject of the application of a legal norm, as a rule, does not use such a category as a method of legal influence, but intuitively feels the essence of this method, its target orientation. The orientation of the method of legal regulation is determined by the political factor (political regime), economic and social ideology, as well as the current situation. Thus, imperative and coercive methods of influence dominate in crisis realities. These methods are necessary to normalize the current situation, ensure security, protect and protect the rights of citizens, preserve the constitutional order, etc. In administrative law, police methods are distinguished, the functionality of which provides for security, both in normal and crisis conditions. In particular, the methods of police activity include "... management and security; administrative supervision; direct administrative coercion; method of administrative jurisdiction; police assistance; police authorization; state registration; licensing; certification; collection of police information; police investigation" ^[7].

As you can see, the functionality of these methods is mainly of a control and enforcement nature, this is due to the subject of police work, as well as the specifics of ensuring a particular type of security. The method of legal influence, in addition to the subject and scope of its implementation, is also determined by the economic basis, in a market economy, various forms of ownership of the means of production, the presence of foreign investors in the economy, imperative methods will not work. In this regard, market methods of economic management are necessary, which are clothed in a legal form. In the conditions of a totalitarian economic, as well as a political regime, methods of imperative, administrative and legal nature are in demand. As K.S. Belsky noted, analyzing the personality and works of scientists of the past, "... N.P. Karaje-Iskrov begins his analysis by stating that two worlds have arisen on earth: the Western one, where private law is considered common law, and public law is an exception.  And the eastern world, the communist world, where the opposite principle applies – public law is common law, and civil law plays an essentially insignificant role, existing only formally. This universal public right is the result not only of ideology, but also of the peculiarity of building a socialist state" ^[8].

Based on this, we can conclude that total administration is an "attribute" of an inefficient state. Such administration requires large organizational and financial costs, leads to the complication of the management process, the deprofessionalization of managerial personnel, and this leads to work on a template and the suppression of reasonable creative initiative. Law in general and administrative law in particular is designed to combat arbitrary administration, unjustified bureaucratization of the management process. As Yu.N. Starilov noted, "... administrative law by its nature is obliged to establish strong and effective mechanisms to combat the "syndrome of disenfranchisement" ^[9].  The struggle of administrative law with negative phenomena in the field of public administration can be carried out by establishing adequate methods of legal influence. In particular, by establishing administrative regulations for the implementation of state functions and the provision of public services. However, it is not only formal administrative regulations, there are cases when these regulations do not improve, but worsen the work, and their application leads to infringement or unjustified restriction of citizens' rights.

In this regard, administrative regulations as a means of regulation must meet all the requirements of legal technology, its developers must understand the nature of the relations that this regulation is intended to regulate. It is also important that the administrative regulations should provide opportunities for reasonable initiative, which is so necessary to solve atypical social and legal situations. I must say that much that happens in the field of public administration, as well as in the interaction of an official and a citizen, is a non-standard situation. Working according to predefined schemes and algorithms is often inefficient, such administrative activities can do more harm than good. We agree with the thesis that the improvement of the management process is directly related to the improvement of the quality of such management methods. Modern management no longer needs imperative methods of influence, to manage does not mean to order, it means to influence the object of management, using "soft" means, as well as methods of stimulating (economic) nature. In this case, the subject of administrative influence himself is interested in achieving a managerial result.  It is quite obvious that the method in the course of the management process, or in law enforcement work, is a connecting element between the parties of the relevant interaction. And therefore, it is necessary to make point-by-point changes to the current legislation, while improving the tools of legal influence.

Today is a period of development of administrative legislation, and public law in general. You can see how the private legal directions of legal regulation have been filled with public legal content in the recent past, in this case we are talking about business law, civil law at one time attributed this branch of law to private law. This was due to a certain period of legal and social "romanticism", as well as the fact that the concept of "entrepreneurial activity" was included in the subject of regulation of the Civil Code (Article 2). However, time passed and there was a minimum of civil law in business law, and today only contractual regulation can be attributed to the civil law regulation of these relations which takes place between an economic entity and a citizen or between economic entities. Currently, it can be seen that quite often the contractual regulation of economic activity includes a public-legal component, in this case we are talking about the functioning of the contract system in the field of procurement of goods, works, services for public needs. This is another method of administrative and legal impact on economic activity. This method is very complex, and also conceals hidden and obvious threats to various kinds of selfish abuses of the parties to the relevant legal relationship. The actual (total) nationalization of economic activity causes the emergence of new methods of control or supervision of economic entities, of course, the state seeks to create optimal forms of implementation for such administration, to prevent the risks of certain threats, but not everything turns out.

This is the current reality, given this, let us once again turn to the disclosure of such a category as "method of legal regulation", from an institutional perspective. It is, in fact, a dogma that branches of law differ from one another in the subject and method of legal regulation. As S.P. Mavrin noted, "... the subject of legal regulation has an objective content, which is predetermined by the very nature of public relations and, in principle, does not depend on the will of the legislator, the method serves as an additional legal criterion for the differentiation of industries" ^[10].

We can agree that the subject of legal regulation is formed evolutionarily, its creation is influenced by a number of factors, however, in order to structure the subject of the branch of law, regulatory material is needed that will have the necessary legal originality, in addition, it is necessary to theoretically substantiate the practical necessity of a new branch of law. In the legal doctrine, the emergence of new branches of law is very painfully perceived, so at one time the question was raised regarding the allocation of: "juvenile law"; "service law"; "operational search law"; "migration law" the basis for such allocation was the relevant legislation. As T.Y. Khabrieva noted, "... the basis of the legal system is based on objective factors – the needs and interests of the state and society, public relations, the rapid pace of development of which activates legislative activity that violates the internal coherence of law: not all new norms fit into the already established structural divisions, as a result of which the structure of law is changing" ^[11].

It seems to us that legislation alone is not enough for the emergence of a new branch of law, even if it is rapidly developing, the maturity of the legal doctrine is necessary, as well as the urgent practical necessity of a new legal phenomenon, and for this it takes time to pass. There is no doubt about the separation of such an education as tax law from financial law. As it is known, one of the constitutional obligations equally concerning both citizens and economic entities is the obligation to pay taxes (Article 57). The modern state is, among other things, a tax state, the doctrine of tax law has been thoroughly worked out by both economists, political scientists and lawyers, and there is no doubt about such an independent branch of law as tax law. This branch of law is of a public-legal nature, there are quite a lot of imperative prescriptions in its content, which is reflected in the method of the corresponding legal impact. Nevertheless, despite this, there are permissive regulations in tax law concerning tax installments, as well as regulations of a stimulating nature, which manifest themselves in the form of tax benefits, tax deduction, etc. The method of legal regulation, in contrast to the subject of legal regulation, is more conservative. It is quite difficult for a new method of legal influence to appear, all legal prescriptions will somehow fit into the content of an imperative or dispositive form of influence.                                                            

However, the emergence of complex branches of law makes this thesis already inaccurate. Today we can already talk about the existence of a comprehensive method of legal regulation. V.D. Sorokin wrote about such a method at the time, however, the attitude towards his idea of a single subject and method of legal regulation was restrained in the theory of law. Perhaps this was due to the fact that the designated author approached the development of the concept of a single method of legal regulation from the position of administrative law. Thus, V.D. Sorokin noted that the unified method of legal regulation includes such components as prohibition, permission and prescription ^[12]. D.V. Osintsev also noted that "... the method of administrative and legal influence is a system of influence of executive power on the social environment determined by the norms of administrative law with the help of prohibitions, permits, positive responsibilities for the implementation of public functions" ^[13].

Depending on the direction of legal regulation (the essence of the branch of law), the concentration of the designated components may be different. It has already been pointed out that in criminal law, there are permissive regulations, but they are not key in the relevant direction of legal regulation. Civil law is characterized by a system of legal permissions. Administrative law is most clearly suitable for the disclosure of all elements of the method of legal regulation, the method of which "harmoniously" combines prohibitions, permits and prescriptions. As A.B. Peshkov noted, "... the form of existence of a single method of legal regulation is nothing but a special method that has all the characteristics and properties of a separate one" ^[14].

Legal prohibition is an objective property of law, it is in the interests of establishing a legal prohibition that official and unofficial regulators of public relations are created. The legal prohibition indicates the type of behavior that is either generally unacceptable at the moment, or possible under certain circumstances, note that this method of legal regulation is of a restraining, preventive nature. There are quite a lot of prohibitive prescriptions in the content of the method of administrative and legal regulation, and these prescriptions can be of an absolute and relative nature. In addition, prohibitions may relate to subjects of a certain legal status, as well as act in certain circumstances, based on this, legal prohibitions may be general and special in nature.

Legal permission as an element of the method of administrative law is the antipode of prohibition, permission is what is allowed, both directly and indirectly. As K.E. Ignatenkova noted, "...permission is a method of legal regulation expressed through legal norms, which consists in granting the subject, within the framework of the law, the freedom to choose a behavior option, stimulating his legal activity, as well as contributing to the full satisfaction of the interests of the individual, society and the state" ^[15].  Legal permission is closely related to legal permission. A permissive method of legal regulation is necessary for harmonious administration. By its very nature, a permit is an integral part of a legal authorization. However, Yu.K. Valyaev notes that "... the permissive method is an independent method of legal regulation, occupying an intermediate position between permits and prohibitions, and covers a set of specific methods of regulatory influence" ^[16]. The permissive method of legal regulation can be formal and informal. For a certain activity (occupation), a formal permit (document) is required, for other activities certain circumstances are necessary, for example, reaching the appropriate age, etc. A legal permit is necessary to overcome legal prohibitions, but only those that can be overcome with the help of a particular permit.   

A legal prescription is something that must be followed by the subject of the relevant legal relationship. A legal prescription indicates the need to fulfill legal obligations, legal prohibitions. This component of the method of administrative law is an integrating form of the corresponding legal impact. A legal prescription may contain legal prohibitions and legal permissions.

At the end of the study of the method of administrative law, it can be concluded that this method is complex, the elements of this method allow us to take into account the peculiarities of various relations and the status of their subjects. The method of administrative law also makes it possible to take into account prescriptions of various functional nature, to combine provisions of both imperative and dispositive properties.