Ar kiekvienam įstatymui taikytinas socialinio veiksmingumo kriterijus?

Abstract

1. A requirement of „good administration“ stipulates the legal system with the corresponding content. This system is treated as the legal, institutional base of the aforementioned administration. The possibility to „improve an administration“ emerges with the conception of the state under the rule of Law. This conception „improves“ an administration because it requires to base this administration upon the supremacy of Law (recognition of the priority of human rights), but not of the statute. The supremacy of Law doesn't require to subject Law to the administration, but to treat the administration as the organization of the protection and realization of human rights.
2. Recognition of the supremacy of Law requires to formulate clearly goals of the statute which realizes this supremacy: every statute is created and executed to realize this supremacy of Law. According to such a fact legitimacy and social efficiency of statutes is „measured“.
3. Tendency to modify the formulation of aims of statutes into the indication of the object of the legal regulation or measures („legal order“) of such regulation predominates in our legislatation. Legal regulation ends in itself here. Protection and realization of human rights stop being addressees of the activities of legislature.
4. So there is no sense at all to speak about a social efficiency of such a statute: if we don't know the aim of a statute, we don't know what results we may expect. While modifying the aim into the indication of legal order, a statute becomes socially efficient even if it didn't start to operate.
5. Identification of the aim of a statute with the object of the legal regulation or measures (the indication of legal order) is the result of uncritical imitation of the tradition of the legal positivism. This tradition consciously avoids to indicate the aim of a statute that legislature would not be obliged for certain quality of a statute's content.
6. It is important to distinguish legal and nonlegal goals of a statute that it would be possible „to measure“ social efficiency of Law. Those goals, which arise from Law itself and which may be reached by legal measures, must be treated as legal. Those aims, which may not be reached solely by legal measures, but may be reached by legal measures jointly with other social factors, must be treated as nonlegal, but social or complex goals. This assists to avoid the overrating of possibilities of Law, and at the same time – the social discredit of Law.
7. An opinion is based that criminal laws punish, but not prohibit. The tendency of the Criminal Code, which attributes to it's norms a function to formulate prohibitions, is treated as an encroachment upon the principle of Law hierarchy and an attempt to separate criminal Law from regulative legal norms, which establish prohibitions (criminal Law exists to guarantee those prohibitions).