Before you get acquainted with the concept of “dispositive norm”, you need to understand what dispositivity itself is.
The concept of dispositivity
Literally, it is a choice. With regard to jurisprudence, this word is defined as a certain opportunity to choose certain procedural remedies. It can be:
- dispositiveness of civil law;
- dispositive procedural civil law ;
- dispositiveness of criminal adversarial proceedings;
- dispositiveness of legal regulation;
- dispositive rule of law;
- dispositiveness as a form of legal settlement.
Thus, dispositiveness is a general legal category that is widely used in all branches of private and public law. A dispositive norm is legal freedom or the ability of a citizen to exercise personal, subjective rights, of course, within the framework of the law.
Dispositiveness and dispositive norms should not be considered as one. “Dispositiveness” is a more general, broader concept than a “dispositive rule of law”. It is the dispositive norms that are the means, the way of expression, the development of the law of dispositivity.
Dispositive norm in examples
Civil law, for example, contains many rules through which interested parties have the right to choose about their own orders. Thus, the owner of the property may, at his discretion, decide in whose favor he will make a will and who will inherit the good he has acquired. The heir may be someone from the immediate environment of the testator, his blood or bloodless relatives, close or distant, friends, acquaintances or even strangers, as well as public organizations, etc. But if neither a testament, nor a deed of gift, nor any other document of inheritance was drawn up, the law will determine and establish the heirs itself. Such laws, which act purely in cases where the relevant orders are not made, are dispositive, i.e. auxiliary, replenishing.
The dispositive norm enables citizens entering into legal relations to establish for themselves certain boundaries 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, dispositive norms themselves fill the mutual relations with their content. However, then they already take the mandatory form and require clear implementation.
For example, during a divorce, if the family has a child, he remains with one of the parents. This parent may not have to file officially for child support if, privately, the other party is obligated to pay them. If no agreement is reached, child support is filed, and the court obligates the party, for example, father, to pay child support in the amount specified in the court decision. Avoidance of payment will be punished.
Or, divorcing, the former spouses agree that the father will visit the child, spend as much time with him as he and the child want, and will continue to fully participate in his life. If the mother begins to obstruct 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 related rules. One of them enables citizens, entities to act at their discretion, to conclude agreements of one kind or another. And the second will supplement or make up for 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 actions and behavior, and its implementation is strictly necessary.