Теоретичні проблеми неореалістичного розуміння права: про теорію тлумачення Мішеля Тропера та його дискусія з Отто Пферсманном
In the present article the author examines the basic theses and methodological postulates of the neorealist theory by a contemporary French legal theoretician and constitutionalist Michel Troper. The author stresses actuality of this theory for better understanding of approaches which are developed in the contemporary legal science to conceive of nature of interpretation of law, of the role a judge plays in interpretation and the limits of her liberty therein. Examination of the neorealist theory is followed by a short analysis of the debates between Michel Troper and another outstanding French legal scholar of our days, Otto Pfersmann.
This short analysis of the case-law of the RF CC allows distinguishing several pivotal axes around which is centred the argumentation of that Court. First, it is the constitutional order that delimits the freedoms of legal subjects with some mandatory requirements and this way makes triumph the collective over the individual. In the same vein the Court agrees to restrict the freedoms for the sake of national security that guarantees survival and development of the society. Nonetheless, collective rights are not equivalent to the collective interests (volonté générale, if to follow the terms of J.-J. Rousseau), these latter are represented not by collectives but by the State that stands both over the individuals and the collectives. The State may in its activities be guided by the underpinning social conventions, but this guidance is limited by the principle of reasonableness following which the State (in fact, its agents) can decide about the extent to which they are ready to recognise these social conventions as reasons for action. It can be interfered that in this aspect one may assert that in the reasoning of the RF CC the collective interest prevails over the individual one, and the both are subordinated to the reasonable guidance of the State.
The primacy of international law is enshined in the Constitution of Russia. At the same time in the European Charter of Local Self-Government states that the principle of local self-government shall be recognized in domectic legislation, and where practible in the constitution. Thus, a rule of international law and a rule of national law indicates the priority of each other.
It is considered the possibility of combining national legislation with international one. There are conclusions of national legislation priority and practice of the Constitutional Court of Russian Federation on the conflict of laws problem in this article. And an interpretation of laws is seemed as a way of conflict of laws overcoming.
The article is mainly devoted to the theory of Russian municipal law sources. The purposes of local self-government are important measure of the hierarchy of municipal law sources.
This article aims to identify some factors of legal regulation that put limits on the use of centralized methods in law and, in a broader sense, in social governance, primarily factors that inevitably produce legal indeterminacy and make a law-applying entity act at its discretion.
The article is based on a hypothesis that putting a safety hedge around the deductive model of law application with the unawareness of legal indeterminacy and the need for discretionary action on the part of a law-applying entity results in this subject being ousted from the theory of legal reasoning and legal theory in general, primarily in Russian legal discourse.
This has direct practical effects as it hides the availability for a law-applying entity of more than one option for a decision on a specific case and consequently relieves it of the need to publicly explain the motives for its choice. For this reason, any attempt to sustain the illusion that a specific decision in the application of law is deductible from law will have the opposite effect, namely enlargement of discretionary powers, inconsistent and arbitrary judicial and administrative practices, and a less significant role of social governance mechanisms that are based on general rules.
Consequently, any attempt to give a paramount role to centralized regulatory methods in government will have internal limitations that stem from such intrinsic indeterminacy.
The article also purports to systematize arguments underlying the thesis of inevitable indeterminacy and partial autonomy of a law-applying entity in taking decisions regardless of what a law stipulates.
The article analyzes factors such as the linguistic indeterminacy of stipulation, the deliberate ambiguity of a specific law (e.g. the use of “bendable” rules or legal standards and value judgments), the incompletion or contradictoriness of a law, the discretionary selection of significant facts and discretionary qualifications of specific cases, legal dysfunction, contradiction between the objectives of a law and the results of its application, inevitable exceptions to rules, and indeterminate principles for the interpretation of law and for filling legal gaps.
The reasons for the use of administrative discretion include more extensive state regulation, wider use of redistribution, changes in the nature of tasks to be addressed in public administration and higher standards for their implementation, more sophisticated decision-making technology, the need for law-applying entities to have better knowledge in various specialist fields and a more prominent role of specialists, limited resources, and the incrementalist style of decision-making.
The author of this paper responds to the critique of the realist theory of interpretation made by O. Pfersmann. M. Troper insists that critique of his theory is based on the incorrect philosophical generalizations. The realist theory considers that it is impossible to find an objective meaning of legal texts also through judicial process. Thus, claiming at the same time that judicial decisions are the main source of knowledge about law and that these decisions do not have objective meaning does not lead to any internal contradictions in this theory.
The article is devoted to a particular form of freedom of assembly — the right to counter-demonstrate. The author underlines the value of this right as an element of democratic society, but also acknowledges the risk of violent actions among participants of opposing demonstrations. Due to this risk, the government may adopt adequate measures restricting the right to counter-demonstrate, certain types of which are analyzed in this paper.
Development of standards of international controllability is reviewed in the article. Institutional approach is applied to development of international legal regime of Energy Charter. Definition of controllability is connected to development of international standards of dispute settlement, which are described in the article in detail. In connection with controllability, Russian interest, defense of investment in European Union and ecological investment encouragement, is reviewed in the article.
мировое управление и управляемость, Мировая экономика, международное экономическое право, энергетическая хартия, International control and controllability, International economics, international economic law, Energy Charter
международное частное право; недвижимость; ; школа бартолистов; бартолисты; теория статутов; статуарная теория/