ПРИНЦИП СВОБОДИ ВОЛІ В ПРАВІ: ЩО НЕ ТАК У ДОКТРИНАЛЬНИХ ТЛУМАЧЕННЯХ І ЯКІ ВІД НИХ ЗАГРОЗИ ДЛЯ ЮРИДИЧНОЇ ПРАКТИКИ

Abstract

The purpose of the study of the problem is to critically analyze the doctrinal interpretations of the principle of free will in the right for their methodological substantiation to the needs of the legal practice of a democratic, rule of law and social state. The authors reveal the shortcomings of the metaphysical method of interpreting free will, which provokes arbitrariness in legal practice. The interpretation of the principle of free will on the basis of the achieved European civilizational level of development of the methodology of law and legal practice of reconciling the principle of free will with other principles of law in their system and in accordance with the global trends of the principles of humanism, equality of human rights, social justice, the rule of law. The study concludes that there is a global tendency to interpret the principle of free will from subjective, arbitrariness based in hierarchical society, to objective, based on a combination of imperative and dispositive methods of legal regulation. In European binding law, in particular, this understanding of free will has been transformed into the doctrine of an equivalent (just) treaty. On this basis, a reform is introduced, which provides for the replacement of the principle of «autonomy of the private will» in the basis of the freedom of contract for enhanced protection of the «weak side», in particular the consumer, not burdened with the knowledge and experience of a professional entrepreneur.