LAW, MORALITY AND ECONOMICS: SOME METHODOLOGICAL REMARKS ON BASISES OF SUBJECTIVE RIGHTS

The article examines some methodological issues related to the concept of “subjective right” and corresponding civil law constructions based on moral imperatives, on the one hand, and those based on the utilitarian approach developed within the methodology of the school of Law and economics, on the other. The author demonstrates that the primary element of civil-law constructions — subjective right is the result of the construction of social reality based on a universal moral category — the golden rule of morality. In the author's view, any other factual aspects should not regarded as legal transcendences, but the latter are in all cases assessed within the framework of certain legal constructs. The economic and law approach, in the author's opinion, reflects the politics of law in its ideological form, which is the reason for the transition from the paradigm of natural law to the law considered in the context of the school of “law and economics”. Following the basic hypothesis of Law matters, the author concludes that civil law constructions not be regarded solely as legal instruments or legal and technical instruments serving to achieve a utilitarian result. The author supports his conclusions with a critical analysis of the basic provisions of the economic analysis of law and empirical material. In particular, noted that the logic of law and economics relies on the analysis of limit values in a stable system, whereas the constructivist view of law based on legal constructions designed for significant socio-political and socio-economic fluctuations. The economic approach focuses on ex ante incentives, while the legal effect aims to establish fairness on the basis of an ex post assessment of the prevailing legal situation. The author shows that the stability and elasticity of legal constructions determine the limits of the impact of imperatives dictated by the vision of law as a factor of economic development. According to the author, the limits of the relevant normative components of civil law constructions are the imperatives of the “morality of duty” and the “morality of aspiration”. In other cases, in the Law enforcement process, the moral and ethical imperatives are subject to the rules of specific legal constructions.