The dispositive norm as one of the basic legal norms
Before you get acquainted with the concept of "dispositive norm", it is necessary to understand what is the discpositivity itself.
The notion of discretion
In the literal meaning it is a choice. Concerning jurisprudence, the given word is defined as a certain possibility to choose certain procedural remedies. It can be:
- disposability of civil law;
- disposability of procedural civil law;
- disposition of the criminal adversarial process;
- disposability of legal regulation;
- discretionary rule of law;
- disposability as a form of legal settlement.
Thus, disposability is general legala category that is widely used in all branches of private and public law. A dispositive norm is legal freedom or the possibility of a citizen to exercise personal, subjective rights, of course, within the framework of the law.
It should not be considered dispositive anddispositive norms as one whole. "Dispositiveness" is a concept more general, broader than the "dispositive norm of law". It is the dispositive norms that are the means, the way of expression, development in the right of dispositive.
Dispositive norm in examples
Civil law, for example, contains many norms,thanks to which the interested parties have the right to choose their own orders. So, the owner of the property can, at his own discretion, decide in whose favor he will make a will and who will inherit the good acquired by him. The heir may be someone from the nearest entourage of the testator, his blood or blood relatives, close or distant, friends, acquaintances or even strangers, as well as public organizations, etc. But if no will, no gift, or any other document on inheritance was drawn up, the law will determine and establish the heirs himself. Such laws, which operate strictly in those cases when the corresponding orders are not made, are dispositive; auxiliary, replenishing.
The dispositive norm gives an opportunity to citizens,who enter into legal relations, establish by themselves some borders and the scope of mutual duties and rights. Of course, these duties and rights do not go beyond the general framework. But if there are no such agreements, the dispositive norms themselves fill mutual relations with their content. However, then they already take the mandatory form and require a clear execution.
For example, in case of divorce, if there is a child in the family,he remains with one of the parents. This parent can not file officially for alimony if privately the other party has pledged to pay them. If the agreement is not reached, there is a submission for alimony, and the court obligatorily obliges the party, for example, the father, to pay alimony in the amount specified in the court decision. Evasion will be punished.
Or, divorcing, the former spouses agree,that the father will visit the child, spend with him as much time as he and the child will want, will continue to take full participation in his life. If the mother starts to interfere with this, the court will protect the interests of the father and force the ex-wife not to interfere with the visits of the father and children.
Dispositive norms are like two relatedamong themselves rules. One of them allows citizens, subjects to act at their own discretion, to enter into agreements of one kind or another. And the second will complement or fill the first, if there is no agreement and the parties will not be able to deal with mutual rights and obligations. Then they will be prescribed some specific version of the actions and behavior, and its implementation is strictly necessary.