Rule of law and legal fact in the logic of the regulatory activity of the civil legislative

Abstract

The article provides a critical analysis of the dogmatic idea widespread in legal and especially civil literature, according to which the norm of civil law is one of the general legal prerequisites for the emergence of civil rights and obligations, and a legal fact acts as a private legal basis for the emergence of specific civil legal relations (O.A. Krasavchikov). In defining the relationship between a norm and a legal fact in this way, the traditional doctrine proceeds from the fact that a legal fact is a fact of real reality with which a legal norm, as a general regulation regulating social relations, links legal consequences. In the author's opinion, such a position is refuted by the understanding that the legal norm, by its substrate, is the text of the named law, containing a certain statement of the legislator. The norm, therefore, does not regulate, because it is created by the regulating activity of the legislator. Knowledge of the formula of the normative statement allows us to define a single norm as the basis for the fact that any situation described in it becomes the basis for the emergence of those rights and obligations for persons who turned out to be the participants in the situation designated in the norm, which are described by the legislator and specified by the conditions of the situation that occurred. In the light of this paradigm, the starting point of the relationship between the norm and the legal fact is the postulate according to which the legal norm is the result of the regulation by the legislator of a certain factual situation, which is the legal fact.