On Lawmaking Discretion as the Psychological and Legal Source of Law

The article is devoted to the actualization of the law-forming potential of discretion as a systemic element of the legal consciousness of the subjects of law-making activity. Based on the dilemma existing in the general theory of law related to the identification of sources and forms of law, the authors of the article solve the problem of their differentiation. In order to overcome the indicated dilemma, the authors propose to transform the triad, traditional for Russian theoretical legal science, combining material, ideological-theoretical and formal-legal sources of law into a dualistic system based on the differentiation of sources (material, ideological-theoretical and psychological-legal) and forms of law as immanently related, but not identical phenomena. By means of the method of paired categories and the principle of determinism, a correlation of the origins and forms of law has been established, within which, according to the authors, the origins of law are important determinants of objective law. It is proposed to supplement the list of sources of law by including psychological and legal sources that combine elements of the legal consciousness of law-making subjects. Based on the understanding of discretion as an element of the legal consciousness of law-making subjects, the authors conclude that this category should be considered as the psychological and legal source of law, which has a significant impact on the law-making process in conditions of both stable and emergency legal regimes.