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MAIN PAGE > Journal "Legal Studies" > Rubric "Теория и философия права"
Теория и философия права
Gorban V.S. - “Law as a Means to an End”: on the issue of genesis and creative modification of the concept (R. von Jhering and R. Stammler) pp. 1-19

DOI:
10.25136/2409-7136.2017.11.24526

Abstract: The research subject is the political and legal and socio-philosophical views of R. von Jhering and R. Stammler on the problem of interpretation of law as a means to an end of existence and development of society. Genesis of this concept — “law as a means to an end” — is connected with the formation and creative evolution of Jhering’s political and legal theory. Later the sociologized variant of interpreting law as a means to an end had become one of the most popular ways of studying and interpreting law. Stammler modified this concept and some other significant components of Jhering’s legal theory (struggle for law, living conditions of society, etc.) articulating the so-called “system” or formal method, which is aimed at studying not the essence of law, but the forms of thinking about law. The research methodology is based on the set of general scientific and specific methods, the methods of theoretical analysis and historical and philosophical reconstruction of political and legal doctrines. The scientific novelty of the work consists in the analysis of the problem of Jhering’s legal views’ impact on the formation and character of Stammler’s creative philosophizing about law, which hasn’t been studied sufficiently enough. The work clarifies the problem of genesis and creative modification of one of the central components of Jhering’s legal theory about the interpretation of law as a means to an end. Stammler’s main achievement in this context consists in the fact that he had introduced the interpretation of law as a means to an end and a range of related theoretical concepts into the central scope of social philosophy. 
Chufarova E.N. - Language of Law in 'Language-Speech' Dichotomy pp. 1-7

DOI:
10.25136/2409-7136.2018.2.25322

Abstract: The subject of the research is the language of law and particularities of the legal speech from the point of view of Ferdinand de Saussure's linguistic dichotomy. The aim of the research is the phenomena that we deal with when we speak of the languge of law, legal speech and law in general. Based on the author, adequate understanding of law texts depends on communicators' overall level of speech competence, their knowledge and concept of the world. Law communication cannot be based on this rule because therei is no particular addressee in law communication and law texts are usually oriented not only at professionals (lawyers) but also general public. The author of the article carries out a comparative analysis of the terms 'language' and 'speech', their definitions in academic researches and analysis of the term 'speech activity' applied to creation of new texts. The results of the analysis demonstrate that law can be expressed through both verbal and writing speech acts. Noteworthy that in this case language functions as a code or universum  (standard rules) to be observed when creating all kinds of law texts. As a consequence, law speech acts, especially those in writing, do not only tend to rigid regulations and clearness but also maximum specification of described features, circumstances and conditions. 
Vinokurov S.N. - Historical Development of Representations on the Role and Content of Good Faith Doctrine in English Law pp. 1-9

DOI:
10.25136/2409-7136.2018.9.27295

Abstract: The subject of the research is the development and content of the concept of good faith in English law. The role of this legal principle has always been ambiguous and was largely determined by the content that English lawyers put into it at a certain stage in the development of the common law system. Formation of ideas about good faith included periods of its complete denial and periods of unconditional recognition at the level of doctrine and during law enforcement practice. Nowadays, the ideas of good faith in the law enforcement practice in England have become more widely applied in relational contracts and contracts that contain the obligation of contractors to adhere to this principle. The purpose of the article is to show the process of perception and development of the content of the idea of good faith in English law. The methodological basis of the research is the historical method and comparative law method, in particular, analysis of the relationship between theory and law-enforcement practice as well as features and stages of development of the object of study. The main conclusion of the study is that the doctrine of good faith has a long history in English law and its place and importance for the common law system have always been considered ambiguously. The author considers the main stages of the development of the concept of good faith from the period of its borrowing from the early canon law and Roman law up to the era of modernity. The differences in the content of good faith are indicated depending on the historical development of the law of England. The role of the idea of good faith for modern English law is highlighted and conceptual contradictions in the interpretation of the content of this principle in modern English law enforcement practice are revealed.
Kodan S.V. - S.S. Alekseev about systematization in law (in commemoration of the 90th Anniversary) pp. 22-38

DOI:
10.7256/2409-7136.2015.1.14091

Abstract: The article considers S.S. Alekseev’s juridical ideas and studies his works. The main subject is Alekseev’s understanding of systematization of law. The author studies various notions developed by S.S. Alekseev, such as “codification”, “incorporation”, “consolidation”, etc. The article considers the Alekseev’s classification of varieties of ways and forms of systematization in law, its goals and social function. Alekseev’s approaches to the understanding of essential characteristics, forms, and types of systematization in law serve as a methodological base for this phenomenon study. They allow further studying of this subject both in theoretical and historical-juridical directions. The study of this sphere in the theory of law is of a big application-oriented meaning in the context of reforming and development of the modern Russian legislation. 
Chuklova E.V. - The structure of the procedural responsibility institution pp. 30-38

DOI:
10.7256/2409-7136.2016.12.1981

Abstract: The research subject is the institution of procedural responsibility which has a two-level system. The author considers each element of this system and notes that norms-definitions and norms-principles form the first level, and the second level contains particular sub-institutions, such as civil-procedural, criminal-procedural, administrative-procedural and constitutional-procedural responsibility. Special attention is given to the study of the measures of sectoral sub-institutions of procedural responsibility, ensuring the protection of procedural social relations. The research is based on the dialectical method of cognition of social phenomena and the related general and special scientific methods, including the comparative-legal, formal-legal, functional, system and other methods. The author concludes about the existence of a separate institution of procedural responsibility. It is proved by the presence of the principles of procedural responsibility, norm-definitions and the peculiarities of application of the procedural responsibility measures. The author considers some prospects of the improvement of this institution. The study is supported by the Russian Humanitarian Science Foundation, project No 16-33-00017 “The complex, intersectoral institution of legal responsibility: its notion, structure, interrelations and role within the system of law”.  
Davydova M.L. - Legal norm, regulatory direction, and statutory exclusion are multiordinal categories pp. 37-44

DOI:
10.7256/2409-7136.2016.4.18805

Abstract: The research subject is the structural elements of the text of a statutory act. The study is written in the scientific polemics genre as a reaction to the idea of correlation between regulatory direction and statutory exclusion presented in the latest literature on theoretical and legal science. The author of the article has devoted many years to the study of the regulatory direction category, and considers the possible variants of correlation between regulatory direction, legal norm, and statutory exclusion from the position of the traditional scientific ideas. Special attention is paid to the scientific value of the legal concepts in question in their classical interpretations. Along with the technical method, the author applies the normative text analysis. The author substantiates her conclusions with the examples of texts of statutory acts illustrating the existing ways of enactments stating. The novelty of the study consists in the discovered ways of legal exclusions stating in the articles of statutory acts. The author concludes that the correlation between regulatory direction and statutory exclusion is changeable, since exclusions can vary according to their extent from a part of a sentence to several statutory acts. Therefore the author criticizes regulatory direction mentioning in the definition of statutory exclusion. The author proves that it is necessary to harmonize classical terms of the theory of law with the newest ones avoiding an arbitrary revision of the established scientific categories. 
Kulikov E.A. - On the issue of a notion “legal liability grounds” pp. 39-46

DOI:
10.7256/2409-7136.2015.1.13658

Abstract: The article considers the questions of legal liability grounds. The author notes that today there is no common understanding of legal liability grounds in the sphere of general legal theory and theory of legal liability, since the research has been carried out strictly in the field of criminal law. This article is a theoretical, philosophical and interdisciplinary study of the issue of legal liability grounds. From a philological position the author studies the notion of grounds. The author considers juridical, factual, philosophical and social grounds. The author uses the juridical dogmatic, historical-legal methods, the method of interpretation of law. In addition the author uses general scientific philosophical methods. The author makes an attempt to enlarge the list of legal liability grounds, and explains this enlargement. The author offers the definition of legal liability grounds on the base of philosophy and linguistics achievements. The article raises a problem of necessity of the whole variety of legal liability grounds revelation, since the lack of at least one of them undermines legal liability legitimacy. 
Shestopal S.S., Oleynikov S.N., Mamychev A.Y. - Theoretical foundation of human rights: J. Maritain's philosophy of natural law. pp. 45-59

DOI:
10.7256/2409-7136.2016.11.2107

Abstract: The paper is focused on the impact of the philosophical ideology of Jacques Maritain - one of the most prominent French philosophers of the XXth century - onto the modern concept of human rights in their legal implementation. The development of Maritain’s basic ideas proved to be rather promising for modern democracy. J.Maritain was the first who managed to unite the philosophical anthropological theory (personalism) with the actual participation in the elaboration of the ideas of human rights, oriented against totalitarian invasions in human liberties. The author of more than 60 books, J.Maritain helped revive the legacy of Saint Thomas Aquinas for the modern times and contributed to the project of the Universal Declaration of Human Rights. The foundation of Maritain’s thought lays in Aristotle, St. Thomas and the Thomistic traditions.Maritain was a strong defender of the natural law ethics. He considered ethical norms as being rooted in human nature. For Maritain the natural law is known primarily, not through the philosophical argument and demonstration, but rather through "Connaturality". Connatural knowledge is a kind of knowledge by acquaintance. We know the natural law through our direct acquaintance with it in our human experience. Of central importance is Maritain's argument that natural rights are rooted in the natural law. This was the key to his involvement in the drafting of the UN's Universal Declaration of Human Rights.
Kulikov E.A. - Philosophical categories in legal science: problems of theory and methodology pp. 59-77

DOI:
10.25136/2409-7136.2017.10.20393

Abstract: The research subject is the patterns of manifestation of philosophical categories in the legal sphere of social life, the approaches to understanding philosophical categories and the specificity of interpretation of philosophical categories by legal science. The author considers the modern ideas about the system of philosophical categories presented in scientific works. In the second part of the article, based on the approaches to the categories as a philosophical phenomenon, the author considers legal categories. The author analyzes the approaches to these categories, studies their role in jurisprudence and the system of legal categories. Special attention is given to the diversity of legal notions. The research subject is closely connected with the methodology. The key methodological approach is the dialectical approach, which is the basis for the system of categories. The author also uses general scientific methods of analysis, synthesis, comparison, generalization, abstraction, and the formal-legal method. The author attempts to actualize the problematics of legal categories and legal notions, and manifestation of philosophical categories in law. This work is the continuation of the author’s candidate thesis. Here the author uses the higher level of abstraction. He moves from consideration of manifestation of one category (measure) in legal science to general principles of manifestation of philosophical categories in the legal sphere of social life. Besides, based on few existing scientific works in this sphere, the author studies the specificity of legal categories and the diversity of legal notions. 
Pratasavitski S. - A concept and a legal nature of risk pp. 60-73

DOI:
10.25136/2409-7136.2017.9.19910

Abstract: The term “risk” is contained in the conceptual framework of many social sciences. At the same time, there’s no unified understanding of the phenomenon denoted by this term. The research object of this article is the general concept of risk and its legal nature. The author generalizes various scientific views on risk, offers his own vision of this phenomenon, and formulates his position on the legal nature of risk. The author also considers the phenomenon, opposite of risk, - the phenomenon of chance. Its peculiarities in jurisprudence are also described in the article.The research is based on dialectical, logical and formal-legal methods of scientific cognition, which help solve the research tasks.The author formulates the original definition of danged and risk and relations between them. Any undesired change has reasonable ground. It includes the reason of the change and the range of circumstances forming the reason and determining its existence. The possibility of appearance of all the prerequisites, necessary and sufficient enough for the formation and existence of such a reason, is called “danger”. And the possibility of undesired change of the state of a subject, caused by danger, is called “risk”. A chance – an opposite of risk – is a possibility of desired change of the state of a subject. The author reveals the legal nature of risk through the subjective duty, and of chance – through legal permissibility, which takes a form of a legal interest or a subjective right (authority). The results of this study can be used both in scientific and practical activity. 
Kodan S.V. - Conceptual Approaches of M. M. Speransky to Systematization of Russian Law pp. 61-77

DOI:
10.7256/2305-9699.2014.11.1281

Abstract: This article talks about the work of the well-known Russian legal scientist M. M. Speransky. The scientific novelty of this article is in the comprehensive analysis of the conceptual approaches used by M. M. Speransky to define the system and systematization of the Russian law. The work shows the process which formed Speransky’s views on the forms of systematization of legitimation, the stages and results of work. Speransky’s approaches to creating the Code of Laws of the Russian Empire, which are still important to solving modern problems with creating a similar document in modern Russia, are of special significance. The methodology of the analysis of Speransky’s conceptual approaches to the systematization of laws is based on modern methodology for  studying the systematic nature of law. The author defined the general conceptual approaches used by M. M. Speransky to systematize the laws of the Russian Empire. It is noted that they predetermined the key directions and forms of legitimation systematization documents, work plans; based on them, work was carried out to make the Full Collection and Code of Laws of the Russian Empire. The author believes that M. M. Speransky was the first in the Russian legal science to define the theoretical provisions related to the systematization in law. It is said that the work of M. M. Speransky for many decades ahead defined the direction of the development of the Russian law and legal science.
Derbysheva E.A. - The legal certainty principle as a requirement of certainty of a legal provision pp. 68-80

DOI:
10.7256/2409-7136.2017.2.21970

Abstract: The research subject is one of the aspects of the legal certainty principle – certainty of a legal provision. Since a legal provision is a basic element of the legal regulation mechanism, its certainty predetermines the effectiveness of the mechanism as a whole. In this context, a legal provision is a key aspect of the legal certainty principle, and it’s important to study it. The article reveals the contents of certainty of a legal provision. Based on the practice of the Constitutional Court of the Russian Federation, the author considers the correlation of the categories “principle”, “requirement” and “criterion” in relation to certainty of a legal provision. The author applies the following methods of scientific cognition: analysis and synthesis, formal-logical and hermeneutical. The scientific novelty of the study consists in the detection and systematization of the components of certainty of a legal provision. The author concludes that certainty of a legal provision is at the same time a principle, a requirement, and a legal criterion. A legal provision complies with the legal certainty principle if every subject understands the consequences of his or her actions directly from the text of the legal provision, or in the result of its interpretation by the court or legal assistance. The author defines certainty of a legal provision. 
Timofeev E.A. - The multiformity of methodology of law and economics pp. 72-87

DOI:
10.7256/2409-7136.2015.12.1669

Abstract: The subject of the research is law and economics, a highly authoritative teaching in the Western science, not enough studied in the Russian scientific literature. Due to its heterogeneity and incompleteness, and the dynamic character of change of the research agenda, law and economics consists of a range of relatively independent theories and branches. Their multiformity and interconnection is the object of the research of this review article. The basis of the methodology is the comparative approach and the method of classification, which helped systematize schools and theories of law and economics according to particular criteria. In the result, the author demonstrates the systemic description of the main existing forms of law and economics, which, despite their immanent differences, resulting from the heterogeneity of primary premises, are the single and a highly promising horizon of interdisciplinary studies. Moreover, the application of various methods within the described variants of law and economics broadens the already significant scientific opportunities of this teaching, thus giving the researcher the opportunity to choose the most relevant method of the particular practical task solving. 
Tsar'kov I.I. - Classical science of the modern period and the law: the experience of borrowing pp. 88-117

DOI:
10.7256/2409-7136.2015.12.1714

Abstract: The article is devoted to the issues of interrelation of processes of the modern classical science and the modern classical law (17th – 20th centuries) development. The author substantiates the idea that these two processes had been intersecting. Moreover, the classical law had borrowed principles and methods from the natural sciences of the Age of the Enlightenment and the modern period. This borrowing helped the thinkers formulate the notion of the state sovereignty in its contemporary meaning. The author of the article applies the methods of hermeneutical analysis, the comparative-legal method, the historical method and the method of transcendental analysis. The author concludes that the concept of the absolute legal sovereignty and the idea of the law as the precondition for the shortest way of achievement of social, economic and political goals by individuals are formulated on the base of the provisions of theoretical mechanics in the field of political and legal knowledge. The law is the means of obstacles eliminating.
Kulikov E.A. - Category of Measure in Legal Science: Matters of Theory and Research Methodology pp. 89-99

DOI:
10.7256/2305-9699.2014.10.1334

Abstract: This article considers the general theoretical and methodological matters related to the research into the expression of the “measure” category in legal science. It gives a philosophical and semantic description of the meaning of this category. In particular, it reviews the linguistic palette of notions which the word “measure” may take in the Russian language. It analyzes the volume and contents of the category of “measure” in the legal environment. The basis for such analysis is the interrelation between law and measure which may be traced in virtually every type of legal consciousness. Also, it defines the methodological pre-requisites for the research into the expression of measure in the legal aspect of the society’s life. Ultimately, the subject of research is the general regularities of the connection between the category of measure and legal phenomena, which should in the future serve as the foundation for tracing particular expressions of the category in question in the components of the legal framework in the society.  In this article, the legal and dogmatic, the comparative methods, the synthetic method, the abstraction technique, and the legal history method were used. This article is one the first studies of the theoretical matters related to the expression of the category of measure in legal science. The author attempts to define the methodological pre-requisites for considering the legal aspects of the above category. The article identifies the legal contents and relationship between measure and the key categories of legal studies – the law, the legal framework, the principle of law, the legal culture. On the basis of the above, it presents the general theoretical model of expressions of measure in legal phenomena. Measure is interpreted by the author as a universal qualitative and quantitative category which characterizes legal phenomena externally, internally and in their individual structural elements. In doing so, it is also essential to rely on the qualitative and quantitative components of measure without separating them from each other.
Kulikov E.A. - On some manifestations of the category of measure in Russian civil law pp. 106-119

DOI:
10.7256/2409-7136.2015.7.15191

Abstract: The author attempts to analyze some manifestations of the category of measure in civil law. Measure, as a philosophical category of the connective “quantity – quality – measure”, penetrates all legal phenomena and, consequently, has its manifestations in civil law. The article describes the phenomena of the limits of civil rights implementation, the abuse of rights, the notion of a treaty, the principle of freedom of a treaty, and analyzes the problem of the limits of freedom of a treaty. The author concludes that the universality of measure and its categorical character are as salient in civil law as in criminal law. The research is based on the dialectical method which includes the teaching about dialectic categories. Moreover, the author uses the general scientific methods of analysis, synthesis, abstracting, comparison, and the special scientific methods such as the formal-logical method and the method of explanation of the law. The author concludes that the general measure of rights and responsibilities implementation, balancing the measure of freedom of a treaty, is the principle of combination of the letter and the spirit of the law in explanation of the norms of the law. Substantiation of this principle means that the legal positivist grounds are moderated by the grounds of sociological jurisprudence. The understanding of a right as a measure which is typical for both types of legal understanding doesn’t help to reveal a contradiction in this situation but proves that only the combination of approaches to the law can help to evaluate its genuine essence as a living and acting regulator of social relations.
Ruvinskiy R. - Imaging the Limit: Degradation of the Legal System's Basis and Crisis of Legal Order pp. 107-118

DOI:
10.7256/2409-7136.2016.9.19876

Abstract: The article considers the problem of a potential possibility to describe the maximum crisis of the legal order. The author raises the question of a culmination point of the crisis in the legal sphere leading to the defragmentation of the legal system. He analyzes the interrelation between the legal order and the legal system, reveals common elements in these phenomena and defines the factors of the legal order dynamics and the structures underlying it. The article contains three parts. The first one is devoted to the problem of equating the legal system crises to economic crises. The second one considers the factors of the legal order dynamics influencing its condition and development trends, the connection of the legal order with the legal system. The third one analyzes the existential and historical background of law and the possibility of the maximum crisis of the legal order. The research methodology is based on the set of materialistic and civilizational approaches to the phenomena under consideration. The author applies the comparative-legal, system, analytical and dialectical methods, the method of historical and political interpretation of legal phenomena, and the method of prognostication. The article raises the issues which hadn’t been raised before within the Russian or the foreign legal science. The author introduces the notion of “onto-historical basis of the legal system”. This notion covers the range of the most stable structures underlying any legal system (the matrix of ideas about good and evil, just and unjust, the legal mentality of the society, the established traditions of lawmaking and law enforcement, etc.). The author concludes that the disruption of the fundamentals of the legal system, comprising its onto-historical basis, is inseparably linked with the maximum crisis of the legal order. 
Rerikht A.A., Dubovik O.L. - Differentiation between criminal and administrative responsibility: theoretical grounds and practical consequences pp. 107-123

DOI:
10.25136/2409-7136.2017.5.22748

Abstract: The authors analyze the prerequisites and conditions of differentiation between criminal and administrative responsibility for the breach of legal regulations. The paper considers the problems of codification of criminal and administrative legislation with account for the experience of the Russian Federation and particular foreign countries. The authors reveal the positive and negative consequences of different models of legal regulation of responsibility for infringement of legislation. The paper describes the positions, established in Russian works on jurisprudence, on the concepts, the essence, and the peculiarities of legal, criminal, and administrative responsibility, their correlation and roles in the provision of legality and order. The authors compare the volumes of different types of punishment, primarily fine sanctions, specified in the Criminal Code of the Russian Federation and the Administrative Offences Code. The authors discuss the problem of reforming the legislation on criminal responsibility and responsibility for administrative offences caused by the changes of socio-economic conditions and modern challenges in the sphere of crime prevention, which have led to the new decriminalization phenomenon. The paper considers the examples of the legal mechanism of formulation of criminal-legal and administrative-legal prohibitions. The authors discuss whether it is reasonable to toughen repressions, and consider the tendencies of replacement of the liberal criminal regulation with stricter measures and of blurring of lines between criminal and administrative responsibility. 
Belyaeva G.S. - On the issue of doctrinal and legal criteria of optimization of legal regulation pp. 124-135

DOI:
10.7256/2409-7136.2015.3.14462

Abstract: The research object contains the problems of optimization of legal regulation; in this relation the scientists' views concerning this concept, the essence, the contents and the problems of efficiency of law are considered, including legal regulations, measures and conditions, legal regulation and juridical activities. Doctrinal and legal criteria of legal regulation efficiency assessment in political and social and economic spheres are systematized. The role of correctly legally provided purposes in optimization of legal regulation in a particular social sphere is substantiated.The author uses the general scientific methods of logical cognition: analysis and synthesis, abstraction, modeling, the system-structural, the functional and the formal-logical approaches.As a result of the analysis of scientific literature related to the problem of legal norms efficiency assessment (legal regulation, law-enforcement acts, legal activity, etc.) and the provisions of legal sources the author offers the law efficiency complex assessment criteria: 1) a ratio between the purposes of a legal norm and the actual results, that is its effectiveness; 2) the rule of law compliance with the social values and interests (needs).
Frolov A.N. - Law and legal conscience: the dialectics of reciprocal influence pp. 124-132

DOI:
10.25136/2409-7136.2017.5.22954

Abstract: The piece considers the dialectical peculiarities of reciprocal influence of law and legal conscience. The author reveals the categorical characteristics of the notions “law” and “legal conscience”, defines their essence and correlation. Special attention is given to the features of law and the structure of the system of law. The author analyzes the essential characteristics of law and the forming and formalizing rules of behavior helping detect the normative and compulsory character of legal norms, and the formulated legal system of social and legal regulation creates the necessary prerequisites for the formation of legal conscience. The study is based on the methods of axiological, normative and comparative-legal analysis. To study the theoretical background of legal conscience, the author uses the dialectical, system, and logical approaches and other methods, which help define the peculiarities of the phenomena under consideration. The author concludes that legal conscience is a set of subjective legal components: legal attitudes, feelings, emotions, theories and ideas connected with the reflection of legal norms, rights, freedoms and duties. Their purpose is to provide normative behavior of a citizen within a society and in relations with a state. They help reflect the legal reality and evaluate the background of legal practice and law, comprehend the prospects of development of legal life from the position of provision of a decent life for each person and fairness of interpersonal relations. 
Kulikov E.A. - Law interpretation measure: problems of history pp. 133-158

DOI:
10.7256/2409-7136.2015.11.1645

Abstract: The subject of the research is the range of regularities of interaction between the category of measure and such an important component of legal regulation of public relations as law interpretation. On the base of the theoretical and legal understanding of measure formulated in the previous studies, the author considers the displays of measure within the interpretation of law and reveals the components of the measure of this process on the base of the analysis of special literature. In addition, the author analyzes the ways of interpretation of law, the types of interpretation and the approaches to classification. The main research method is the formal-legal method. The author also applies the generalization of judicial practice, analysis and comparison of views on the problem, and the study of the categories of dialectics. On the basis of the research, the limits of law interpretation and its general measure can be defined as the existing in the whole legal system of the society basic grounds, ideas and principles, conditioning the existence and development of all legal phenomena, getting into its regulatory system. The understanding of law as a measure of public life can be considered as one of such limits which helps formulating the requirements to its form and content. 
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