Пределы права и парадоксы правового регулирования
The article deals with the historical development of concept of limits of law and its relation in connection with rational/irrational opposition. The paradoxical nature of the limit as such consists in the fact that it creates a freedom space and decease irrational forces and at the same time restricts this freedom and force the freedom to overcome the limit. There are two types of limits of law: moral (principled) limits and practical (instrumental) limits. The rational basis of these limits is analyzed in article. The moral limits of law identify deviations in the relations between individuals, society and the state, irrational approaches and decisions. The paradox of moral limits manifests itself in the form of dependence of freedom on the modern state. Practical (instrumental) limits arise in a case when law subdue to the goals and functions of other systems, and lost its autonomy. The necessity of critics of using of law as a means-to-ends is substantiated. Practical limits of law are manifested when regulation ignores the state of social system: the level of integration of social system or its stratification or the level of democracy. Paradoxes of regulation arise both in the object regulation and in the legal system itself. If legal regulation ignores the autonomy of law, rationality of legal system decreases. The signs of these are the practical limits of law and paradoxes of regulation.
The article deals with the main forms and directions of interaction between modern Russian legislation and some institutions and provisions of islamic Shariat. The author analysis attempts of referring to Shariat in modern Russia in different forms including implementation of above mentioned norm and institutions in Russian legislation. He underlines the possibility of guite wide referring to Shariat provisions as far as the problems covered by dispositive norms of the legislation in force are concerned.
The collection of papers is made of works of participants of the V Internatioanl Conference which took place on May 12, 2017 in Novosibirsk. In papers explores and analyses the fundamental and applied problems of modernization of the legal system in russian and international contexts.
Legal system is a concept embodying the multifacetedness of law, i.e. its internal architecture (elements of law which are complex systems per se), correlations within the system, interaction of law with other parts of socium. Legal system has been the subject matter both of law and sociology of law. Each of the sciences has developed its own approaches to this phenomenon, which do not tend to cross. Each science makes its own path not addressing the achievements of the interdisciplinary discipline. Sociology of law doctrines are considered by the author as the instruments to widen the cognitive borders of the traditional for lawyers positivist approach to law, to discover topical research perspectives. On the basis of the views of T Parsons, D. Black, N. Luhmann, P. Bourdieu, the article develops the methodology of the social approach to legal system, reveals its advantages and disadvantages. Sociologists are used to shifting a significant role in functioning legal system to legal professionals. They focus on the contradictions in the relations between legal framework (legal system, normative system etc.) and politics. The views of sociologists are extrapolated to the current reality of Russian legal system. Its majour issue is seen in the imbalance between law and politics as the ruling elite imposes a beneficial for it structure of legal system on society, intervenes in legal communication including judicial enforcement of courts and law enforcement agencies. The majour attention of lawyers should be drawn to ensuring their relative independence, widening the autonomy of legal framework and legal communications, and building up their authority when adopting paramount legal acts. This is the only way to create a prerequisite to tackle the problems which the legal system of Russian society is facing. The article covers the current empirical legal approaches suggested by sociologists as well as the causes for such research, results, perspectives and possibilities to engage jurists in such studies.
The article touches upon the analysis of provisions of constitutions of Arab countries concerning status of Sharia as source of legislation as well as practice of their interpretation by organs of constitutional control. Constitutions of practically all mentioned countries declare Islam as a religion of the state. Arab lawyers understand this principle in a different way. According to the prevailing view assertion of Sharia role in the legal system demands its constitutional recognition as source of legislation. Such a status is fixed in Arab constitutions in different forms. Some of them provide for Sharia is a main source of legislation using in original text in Arabic the term “main source” in indefinite form without “al” article. Some countries have already acquired legal practice of interpretation of these constitutional norms while solving claims on legislation which contradicts Sharia and its conformity with constitution. For example Federal Supreme court of UAE concluded that constitutional provision about Sharia as a main source of legislation is addressed to the legislature and not to the judicial bodies. That is why Sharia is to be understood as a material or historical source of law. At the same time on the basis of the given constitutional norm together with provisions of laws about judicial power the organ of constitutional control of UAE justified the possibility of direct implementation of Sharia norm as official source of law. Egypt has acquired its own experience of constitutional assertion of Sharia status. The Constitution of 1971 initially considered the principles of Sharia as a main source of legislation. But after an amendment adopted as a result of referendum held in 1980 was introduced the modified constitution provided for these principles were the leading source of legislation. The Supreme constitutional court decided that such constitutional provision was addressed to the legislature. As for contradicting Sharia laws which had been adopted before the mentioned amendment took place they are still affective and confirmative to the constitution as Sharia were not considered to be the leading source of legislation at that time. The role of Sharia as source of law has its own features in both Saudi Arabia and Libya. In general the place Sharia occupies in the legal development of contemporary Arab countries depends upon a number of factors. But its concrete role is determined mainly by legislature and first of all on constitutional level.
The subject-matter of this article is the ‘systemacity of law’ concept and its methodological feedback. Continuing a series of articles on this subject, the author focuses on the internal rationality of claims about the systemic character of law. This rationality is embedded in the legal thinking of Modernity and reveals itself in the belief in the rational nature of law. According to this style of legal thinking, such internal rationality impedes law from being chaotically or randomly organized and structured. Therefore, law shall have a reasonably organized structure, even if in reality it does not have such a structure. In this way, the belief in an internal rationality of law transforms itself into the requirement for the rational organization of law. These two elements – belief in an internal rationality and the requirement of the rational organization of law – are the pillars of the dogmatic conception of law which was established in Begriffsjurisprudenz of the 19th century and which still holds sway over contemporary continental legal thinking.
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/