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Article

Методы теоретического правоведения в контексте глобализации

The contemporary level of scientific knowledge in the realm of jurisprudence rules out metanarratives about essence of law. Legal pluralism, being one of the consequences of globalization, has become one of the incontestable facts of the legal reality; legal regulation is now carried out on many levels and in a multiplicity of forms. This implies that essentialist discussions about the nature of law are out of date. Russian legal theory until now has relied on the essentialist scheme of le􏰁 gal thinking, in which a definition of the law is the starting premise and the binding force of law is justified with reference to the category of sovereignty. This scheme involves contradictions between: claims from the constitutional discourse about the supremacy of human rights and the priority of principles of international law or balance in law􏰁application, on the one hand; and the theoretical foundations of such claims, on the other hand. The style of legal thinking based on the legal scholarship at the beginning of the XX century can show the inadequacy of philo􏰁 sophical and theoretical conceptualizations of the key problems of legal science such as sources of the binding force of the law, limits of the rule􏰁making power of the state, and the correlation between legal orders created by the state and by other social institutions. Legal education and scholarship in Russia are still pre􏰁 supposing that state power prevails in the issues of law􏰁making and law􏰁enforce􏰁 ment; this justifies the absolute and unlimited character of state sovereignty and the other key ideas in the first versions of legal positivism. Because of the iron cur􏰁 tain in the previous years, in the late 1980s Russian legal philosophers and theo􏰁 reticians found themselves unprepared to make a theoretical conceptualization of the effect of globalization. Moreover, during many years they just ignored the prob􏰁 lems that are connected with this effect. Nonetheless, in the scope of these years the Russian economy and, to a large extent Russian law, have gotten involved in the processes of globalization, including the processes of fragmentation and the pluralization of legal orders. This has resulted in a considerable gap between legal theory and legal practice.