The Social History of Law as a Factor of the Rule Of Law
The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective.
This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types—the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe,
and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a "triangle" of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional
community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law
In article the picture of changes of standard-values system of the Russian society is presented. It is shown that, remaining as a whole neoetatcratic, it in last years has undergone the essential changes testifying to its slow washing out traditionalist kernel.
While many past theoretical discussions on nature of social norms were centered on a problem of their precise definition, I propose an analysis of peculiar character of sociological theorizing about norms which is grounded in a wider interdisciplinary context (particularly, on sociologically relevant implications from H.L.A. Hart’s and H. Kelsen’s views on law and norms) and based on systematization of principal norm-related questions which varying types of theories attempt to answer, i.e., nature of norms, social mechanisms of their maintenance and change, analytic and empirically-based distinctions between norms and rules and conventions, irreducible complexity of norms, etc. Besides, the chapter presents a systematic review of classical and modern approaches to elucidation of intricate relations between multiple normative systems, e.g., law and morality. I also discuss some recent arguments against moral relativism in social sciences brought forward by S. Lukes.
quarter of a century has passed since the Constitution of the Russian Federation was adopted in 1993, yet the issue of the results and the prospects for constitutional transformation has not disappeared from the political agenda. For some, the Constitution signifies an ultimate break up with the communist past and a legal foundation for the advancement of the Russian society toward democracy and the rule of law; for the others, it is exactly the Constitution that is the culprit for the authoritarian trend that has prevailed, and for the sustained stagnation in Russia’s economic, social and political development. The author of this chapter is in the middle of these extreme viewpoints. He believes that the Constitution has truly played a pivotal role in Russia’s move toward democracy by establishing the basic principles of civil society and the rule of law, and in this respect, it remains of everlasting and paramount importance. Nevertheless, that does not mean that it should be utterly inaccessible for changes, especially given the elapsed time and the negative experience of the authoritarian transformation of the political regime, the amendments that were introduced between2008 and 2014, and the current objectives of the democratic movement. The rationale for changes is to return to the constitutional principles, reaffirm their initial democratic meaning by rejecting the excessive concentration of the Presidential power, the results of counter-reforms and the adulteration through legislative and regulatory compliance practices. Some of the proposed remedies aim to establish a new form of government (Presidential - Parliamentary), which would necessitate Constitutional amendments — adjustments that would regulate the separation of powers and redistribution of authority. Others seek to transform the system without changing the text of the Constitution through legislative reforms, judicial interpretation and the policy of law. Yet, the third approach prioritizes institutional reforms. Not everything in social development depends on the provisions of the law, political improvisation and practice can prove just as critical. In their cumulative entirety such initiatives can help avoid the two extremes: that of constitutional stagnation gravitating toward the bureaucratic asphyxiation, and that of constitutional populism which has a tendency to destabilize the political system. In its practical activities to transform the political regime, the opposition ought to remember the maximum repeatedly confirmed by experience, — the further a party is from power, the more radical tend to be its constitutional proposals. Conversely, empowered groups tend to be more moderate in their initiatives.
The collective monograph presents the results of the theoretical and historical-sociological research of the normative grammar of social action as well as the moral infrastructure of social order. The research was based on the in-depth analysis of the relevant mainstream and also rather peripheral ideas and concepts of classical and modern social theory, cognitive science and the ‘new’ sociology of morality. Among the main topics of the monograph are the theoretical re-interpretation of the concept of “norm” in an interdisciplinary perspective, the mechanisms of normative morphogenesis, structures of group and professional morals, and theoretical examination of risk-responsibility link in everyday moral evaluations. In addition, historical-theoretical reconstruction of some classical sociological theories is used for outlining new prospects in theoretical interpretation of the processes of normative change and crystallization and also of the multiplicity of normative systems. The book will be useful to readers in many different fields of social sciences and humanities, including those studying sociology at advanced level. It also will make an immediate appeal to the general reader familiar with contemporary social theory.
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/