К вопросу о «системном» характере права
The present paper deals with the question about systemic properties that are attributed to law. The author criticizes the superfluous analogies between ‘systems’ in the social, biological and technical senses, and articulates the difficulties connected with application of system theory for description and explanation of the positive law. In this paper are also considered some arguments in the defence of the thesis about systemacity of law, the author provides his critical counter-arguments.
In this article the author examines the conceptual problems which the post-soviet jurisprudence meets when dealing with systematization of law, to wit with constructing an order of the legal material and with explaining of unity of law. The author critically reassesses the existing doctrine of divisions inside the law which are led on the base of such criteria as object and method of legal regulation. Subjective nature of these criteria is revealed in this article. From the theoretical standpoint, these criteria turn out to be devoid of sense, as they solely fix conventions of a legal community; one cannot verify significance and veracity of these criteria through a scientific analysis. The author also challenges the conception of systemacity of law which is based on a mixture of value judgments and of facts obtained from description of the positive law. These conceptions of the post-soviet jurisprudence are irretrievably connected with the vulgarized Marxist-Leninist philosophy. As a theoretical alternative to them, one can recur to the conception of “Normative Systems” which were elaborated in the 1970-s by the Argentinean scholars C.E. Alchourron and E.V. Bulygin and which gained a wide acceptance in the Western legal philosophy.
Les rapports entre ordres juridiques interpellent les juristes, toutes disciplines confondues. Les interactions normatives que ces rapports suscitent, le mouvement du droit qu'ils enclenchent, interrogent les fondements mêmes de nos cultures juridiques en modifiant en profondeur la structure des ordres juridiques et leurs notions fondatrices.
L'idée de Baptiste Bonnet, directeur scientifique de l'ouvrage, a été de faire se rencontrer de nombreux auteurs et membres de juridictions sur un sujet qui transcende les disciplines juridiques, de décloisonner, d'accepter de repenser des notions, de chercher de nouveaux outils et de permettre à la doctrine de porter un regard sur elle-même, sur ses évolutions et in fine sur le droit.
This article gives an account of the international symposium «Norms and Normative Systems in Philosophy, Law, and Informatics — 2011», the authors describe the most important aspects of the symposium and summarize the key points of the main presentations made at the symposium.
The author examines to which extent are possible in the scope of legal science and are effective different approaches to validity (binding force) of law in the context of classical and postclassical scientific paradigms. The difference of approaches reveals diverging methodological foundations for understanding law as unity and to comprehend such characteristics of law as systemacity or integrity.
In this article are discussed the limits of application of general theory of systems in legal science. The author criticizes utilization of the notion «systemacity» for description of how legal norms are organized and how legal phenomena are structured. In author’s opinion, the term «system» is charged with a multiplicity of meanings, so that in social sciences this term is sometimes applied for characterization of the fundamentally different phenomena and realities. That is why legal scientists shall be especially careful in using this term. In the Russian jurisprudence the term «system» is applied for both «social reality of law» and for a set of the norms belonging to the positive law of the country. This use is tautological and has no conceptual justification. The author proposes to use the term «legal order» only for description of a structured set of legal rules, reserving the use of «system» for characterization of law from the point of view of comparative jurisprudence, legal sociology and other sciences which examine the relations between the law and other sectors of social reality. Argumentation in favor of «systemacity» of law is theoretically based on philosophy of objectivism. It results in vain illusions about a capacity of norms to produce themselves a legal order which emerges automatically insomuch as law is a functional entity. But this «systemacity» is not given in (the) law a priori. Logical coherence and consistence of norms always remain relative, being the outcome of the purposeful activity of lawmakers, judges, legal scholars. It is naïve to suppose that rules can enter into the law and find their adequate position there without human intervention. Such understanding can lead to apology of irresponsibility of those who create redundant and inconsistent norms in the false hope that these norms will anyways find their place in the law grace to «systemacity» of this latter.
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/