Злоупотребление правом и неизбывные противоречия позитивистского дискурса

Abstract

The article substantiates the fundamental failure of attempts by domestic legal scholars to reveal the nature of the phenomenon of abuse of law and to develop convincing recommendations for countering the growing expansion of such acts in the Russian legal system. From the standpoint of constitutional legal understanding, the reason for what is happening is the fundamental unwillingness of the authors to abandon the dogmatics of neopositivist legal understanding, coupled with the methodology of classical rationality, which determine the internal contradictions of the corresponding scientific judgments and conclusions. The consequences of legal formalism also turn out to be mutually exclusive and equally untenable arguments on issues of the relationship between abuses of law and offenses, countermeasures and legal liability, as well as the optimization of the algorithm of the necessary legal response to abuses of law. The focus of the critical analysis is on representatives of Russian procedural law science.