Нормативность и фактичность в защите религиозных свобод
The paper considers the legal and philosophical issue of the correlation between facticity and normativity in the aspect of regulation and protection of religious freedoms in the past contemporary Russian law. The paper suggests considering in this aspect the gap between the normative content and the meaning of the corresponding norms of Russian constitution and statutory law and the implementation of these norms in court and law-enforcement practice. The author argues that the liberal norms transplanted from Western legal orders into Russian law do not fit well the symbolic sphere of the post-Soviet Russia where religion itself serves as one of the cornerstones of national identity and as a major constituent element of the state ideology. In factual court practice, constitutional and statutory norms about freedom of conscience are shaped contrary to their prima facie meaning. The lack of tolerance in Russian society leads to the fact that many non- traditional religious denominations are considered as socially unacceptable, and for this reason there emerges a societal attitude against the non-traditional religious denomina- tions. Being formally under the authority of the law, judges and other adjudicators are in fact under the influence of many factors among which one can mention different programs and declarations by the political leadership and by state officials, as well as the public opinion. In author’s opinion, this leads to the integration of the religious concep- tions of the «traditional» denominations into Russian legal order, which is illustrated in the recent statutory amendments concerning the protection of “religious feelings’ and in the practice of enforcement of the anti-extremist legislation.
The author criticizes the neorealist conception of legal interpretation defended by Michel Troper. It is stressed that the neorealist approach to interpretation does not allow proving its own theses from a scientific standpoint. Subjectivist and voluntarist understanding of interpretation leads neorealism to a sociological conception of law. This understanding does not catch the most essential characteristics of legal phenomena.
In the work are summarized the basic tenets of the theory of validity of legal norms; the ideas of Kelsen about legal validity are critically analyzed.
The author of this paper aims at summing up the key elements of legal doctrine developed by the Austrian legal thinker Hans Kelsen. Kelsen’s theory is multifaceted and it admits not only formally juridical but also sociological, philosophical, cultural, political understandings of law. Although, this thinker draws an exaggerated distinction between different scientific disciplines – drawing this distinction served as the main reason for criticizing his conception of law. The juridical ideas introduced by Kelsen were in accordance with the need of science of law in deideologization of legal science and in abandoning essentialism when explaining law and state. For that époque these ideas served as valuable instruments which gave way to further philosophical discussions about law in the 20th century. Reassessing Kelsen’s theory in the perspective of the contemporary social sciences, one can conclude that the approach to law advocated by Kelsen is fairly compatible with the non-classical scientific paradigm.
This paper deals with the basic perspectives of the article by the famous Argentinian legal scholar Eugenio Bulygin that was devoted to the problem of efficiency of law. That article has been written in the very beginning of scholarly career of Professor Bulygin; it reflects the level of discussions on this problem in the world legal science in the mid- 1960s. Professor Bulygin analyses how efficiency of law was thought as per validity of law in the conceptions of the leading representatives of legal positivism such as Hans Kelsen, Alf Ross or Herbert Hart. Bulygin asserts that the correct way to think objectivity is to accept that it is possible to deduce a judicial decision from a general rule of law. For Bulygin, the key to solve this problem is to draw the distinction between legal rules and legal propositions with the help of which legal rules are posited. From the standpoint of Bulygin’s conception of efficiency of law, legal rules are effective if they are applicable or justiciable. Justiciability is the quality of legal rules, which is considered in the terms of reasonable expectations about enforceability of these rules by judicial, and other law- application organs when adjudicating disputes. Publication of this article by Bulygin led to a discussion with Hans Kelsen who critically assessed the ideas set forth in the article. In this perspective, the article of Bulygin is an important mark in development of legal philosophy in the 20th century.
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.
From 18 to 21 November 2015, in the Vatican, the Congregation for Catholic Education celebrated the fiftieth anniversary of the Second Vatican Council’s Declaration Gravissimum Educationis and the twenty-fifth anniversary of the Apostolic Constitution Ex Corde Ecclesiae. As part of these celebrations, the Congregation aimed to re-energise the Catholic Church’s commitment to education by means of a World Congress entitled ‘Educating Today and Tomorrow: A Renewing Passion’. The main aim of the Congress was to re-energise the role of Catholic schools and universities that act in the name of the Universal Church. The Congress urged more than 5,000 participants to step up efforts to promote dialogue in times of spiritual poverty, self-referential exclusiveness, harmful spread of ideological viewpoints, and the lowering of the general level of culture.
In line with the aims of the Congress, and under its hospitable auspices, the European Association for Education Law and Policy (ELA) held a special conference. The ELA sessions within the larger Congress focussed mainly on the re-consideration of the role that religion plays in education in general. The main concern of this legal panel, therefore, was the way religious studies, the rights of believers, and non-believers are accommodated in both secular and confessional schools and universities around the world. Thus, the ELA sessions encompassed the transformation and renewal of religion in education in general (not only Catholic education), across various sectors of society.
This issue is a compilation of papers presented at ELA sessions in the Vatican. The papers presented at the ELA sessions were submitted to double blind peer review processes and only the best accepted and selected. The editors are already in possession of a full draft of the manuscript. This draft has been extensively edited for language and coherency already. The contributions composing this issue provide an all-encompassing analysis of the position of religion in education across the globe and how religious distinctiveness in education can be promoted. This volume deals, first, with overarching concepts of accommodating religious distinctiveness at schools and understanding the place of religion in compulsory instruction. Second, it provides important case studies explaining in much detail the various approaches to reconciliation of law and state, religion and education, secularism and diversity that exist in the world.
Although there are books about education and religion on the market, this volume focuses specifically on renewing a passion for protecting religious distinctiveness in increasingly secular societies. Emphasis is placed on how to achieve equality and religious freedom in democratic societies, while focusing on protecting the human dignity of religious adherents (parents and learners/children) through the protection of their religious distinctiveness. The manuscript also compiles the work of several academic experts in law and education and several expert practitioners in law and education (deans, ministers of education etc). The wide spectrum of countries discussed (USA, Europe, Australia, South Africa, South America) provide a holistic picture of religious distinctiveness across the globe. Practical suggestions towards maintaining religious distinctiveness are also provided. What is even more unique is the fact that the manuscript presents various and competing perspectives on religious distinctiveness.
In dieser Festschrift für Werner Krawietz greifen Kolleginnen und Kollegen, Schüler und Freunde aus aller Welt, die ihm in vielfältiger Weise verbunden sind, zentrale Fragestellungen auf, die ihn wissenschaftlich seit Langem bewegen. Mit der Positivität des Rechts wird an seine rechtswissenschaftliche Dissertation zum Thema »Das positive Recht und seine Funktion. Kategoriale und methodologische Überlegungen zu einer funktionalen Rechtstheorie« angeknüpft. Da für ihn aber eine Engführung der rechtswissenschaftlichen Forschung auf das positive Recht zu kurz greifen müsste, hat er sich mit seinen Forschungen schon frühzeitig dem komplexen Verhältnis von Normativität, Positivität und Faktizität des Rechts gewidmet. Hinzu tritt ferner das institutionelle Rechtsdenken, welches für Werner Krawietz als Amtsnachfolger von Helmut Schelsky auf dem Lehrstuhl für Rechtssoziologie, Rechts- und Sozialphilosophie an der Rechtswissenschaftlichen Fakultät der Westfälischen Wilhelms-Universität Münster höchst folgenreich geworden ist. Schelskys Konzeption von Recht und Gesellschaft hat Krawietz in einer institutionentheoretisch gesättigten Theorie und Soziologie des Rechts fruchtbar gemacht.
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/