Christian Baldus, Wojciech Dajczak (Hrsg.). Der allgemeine Teil des Privatrechts: Historische Wurzeln – Leistungsfähigkeit im 21. Jahrhundert. Peter Lang GmBH, 2018. 221 S.
‘The General Part of Private Law: Historical Roots – Efficiency in the 21st Century’ is the collected papers published as the 12th volume in the series ‘Writings on the development of the system of private law’ edited by Christian Baldus und Christian Pohl. It is a follow-up to ‘Der allgemeine Teil des Privatrechts: Erfahrungen und Perspektiven zwischen Deutschland, Polen und den lusitanischen Rechten’ Peter Lang GmBH, 2013 – 556 S. The collected papers result from two conferences and two research seminars held in Poznań and Heidelberg in 2010–2016 in order to investigate the efficiency of the general part of private (civil) law for lawmaking, legal scholarship, education, and, to lesser extent, judicial decision-making in the historical and comparative perspective.
Comparative legal history is a fashionable new discipline which aims at a better understanding of the law’s past by comparing similarities and differences of legal phenomena in two or more jurisdictions beyond the limits of national legal histories. Despite its popularity in Europe, it still lacks comparative projects that cover both Western and Eastern areas of the Continent, not least because the methodology of such comparison requires proper consideration and cannot be simply copied from comparative law or national legal histories. The present article evaluates the applicability of the dominant method of today’s comparative law (the functional one) in the domain of the general contract law of the first codifications in the major jurisdictions of Continental Europe (Austria, France, Germany, Russia) during the 'long 19th century'. This subject matter is chosen by way of example as a 'legal cross-road' of legal concepts and models, more susceptible to changes, in- novations, borrowings, and closely linked to social needs. In the main part of the article, it is argued that the adaptation of the functional method to the needs of comparison in legal history becomes plausible due to at least two factors. First, comparatists mitigated the rigid assumptions of the 'classical' functionalism of the 20th century (rejecting its privileged status and purely functional perception of law, irrebuttable presumptions of similarity and unification of compared legal systems etc.). Second, many legal historians, like the drafters of the first civil codes in Western and Eastern Europe, also believe that law is more than minimally connected to social problems and manifests itself primarily through its actual application. On the basis of such premises, the author of this article discusses potential benefits and limitations of researching general contract law in the selected jurisdictions with the functional method. At the preparatory (descriptive) stage, it can be useful to assure comparability of contract law in the selected civil codes, to identify omissions in the codified general rules on contracts, and to arrange legal provisions around practically relevant issues. At the stage of analysis, functionalism can be coupled with teleological interpretation of legal norms to enable us to understand better the link between the application of the legal rules, their legal purposes, and the practical social problems serving as tertium comparationis for all the compared jurisdictions. A sketch of such an analysis in the final part of the article allows to conclude that research with the help of the functional method narrows our perception of law as a cultural phenomenon and breaks the inner doctrinal logic, but in return, it offers a starting point for much needed dialogue of legal historians with a wider legal community.
This article examines the history of Russian laws protecting citizens’ dignity and honor. Pre-revolutionary Russian legal scholars assumed that ethical dignity could not be legally protected because it was not contingent on social esteem: it could be tarnished only by the bearer himself. But when the Moral Codex of the Builder of Communism outlined the norms of morality, the law extended its protection to citizens’ ethical dignity, among their other immaterial personal values. The Moral Codex disappeared after the Soviet collapse, but the legal protection of “honor and dignity” remained: today, the law defines dignity as a “moral-legal category,” determined by commonly accepted social standards.
Many European and even some Russian academics consider Russian legal history to be a series of ruptures. There is some truth to this, and yet the law in east of Eastern Europe is not devoid of continuities which link it with European legal trajectories. This paper examines the pattern of the codification of civil law as one of those links.
Russian experience with drafting civil codes goes back to the ‘age of codifications’ and culminates with the ‘normal’ draft Civil Code of the Russian Empire of 1882–1913. After the Bolshevik revolution of 1917, Soviet civil legislation claimed to break away from all continuity with the bourgeois legacy, domestic and foreign. However, even the codification of ‘real socialism’ in the early 1960s reveals notable similarities with the ‘bourgeois’ legal experience. The theoretical concept of the Civil Code of 1964 overlapped with the modern notion of the code during the ‘age of codification’. This similarity was backed up by the positivistic legal scholarship that conceptualized Soviet law as a hierarchical and gapless system of binding norms.
This part of the Soviet legal legacy still marks the Russian Civil Code of 1994-2006. Hence, the formalistic pattern of codification remains one of the Soviet relics in contemporary Russian legal style and allows a comparison with other civil law jurisdictions in Europe.
The paper examines the principles for the supervision of financial conglomerates proposed by BCBS in the consultative document published in December 2011. Moreover, the article proposes a number of suggestions worked out by the authors within the HSE research team.
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/