The following article considers the history of the Juridical Council of the Provisional Government from a biographical methodological perspective. The Juridical Council was established in March 1917 after the February Revolution in the system of the Provisional Government as a governmental body of legal expertise. The paper provides a summary of biographical information about lawyers of the Juridical Council (Vasily Maklakov, Fyodor Kokoshkin, Nikolay Lazarevsky, Vladimir Nabokov, Moisey Adzhemov and Baron Boris Nolde), their origin, education, political career, professional and academic interests. Most of lawyers in the Council were descendants of noble Moscow and St. Petersburg families and belonged to big city intelligentsia circles. They graduated from Moscow University and St. Petersburg University in 1890s during golden era of Russian legal university education and their views concerning law, government, liberalism, parliamentarism and public role of legal profession were formed under a great influence of liberal professorate and in the atmosphere, when a university seemed to be the most liberal institute of the conservative era. The analysis of biographical information leads to a conclusion that lawyers of the Council developed a new legal ethos, the characteristic feature of which was the adherence to the ideology of rule of law and civil society.
This article is focused on the little-known plan of modernization of rural society in Russia, created by headship minister M. N. Muraviev for «crown» (state) sector of the Russian landed property. Аn unbiased analysis of this plan allows us a deeper insight into the multifaceted peasants reform of 1861–1866 and its consequences for the legal development of Russia.
Alf Ross is one of the most prominent representatives of Scandinavian legal realism and one of the main participants of the discussion on legal validity. This article explores the main points of his realistic legal concept. Ross uses a unique mixture of the main tenets of logical positivism and the Uppsala school of philosophy to suggest a new project of theoretical legal science, which implies, among other things, that its key element is specific legal “validity” — in interrelation with legal “effectiveness” — and not the concept of law. This brings the author to the necessity of a rather thorough linguistic inquiry of various Russian, English, Danish, etc. terms related to the concept of validity, which leads to the conclusion that correct Russian translation of Ross’s terms “gyldighet” and “gælden” is “dejstvitel’nost’” and “dejstvennost’”, respectively. Together with the analysis of Ross’s ideas about the province and proper methodology of jurisprudence this allows the author to fully and accurately reconstruct such aspects of Ross’s legal theory as content and role of the concept of law as well as realistic concept of legal validity. The author argues that specific interrelation between “validity” and “effectiveness” — and its underlying principles — is also a key to understanding the whole Ross’s concept of new realistic jurisprudence, which encompass a differentiation between legal knowledge and legal politics, an empirical approach to legal cognition, reducing the gap between legal theory and practice. Other topics, specifically addressed in this article, are Hart — Ross critical exchange and Ross as a legal realist.
The paper is devoted to the Constitution of 1808, granted by Napoleon to Spain. The author demonstrates the history of its promulgation, analyzes its sources, characteristic features, significance for the political and legal history of the country.
In Human rights in the context of a Petrażyckian perspective Prof. Polyakov criticized Fittipaldi’s “Strict Petrażyckianism”. Here Fittipaldi replies to Polyakov’s critiques. Fittipaldi argues that scientific concepts select classes of phenomena able to enter as causes into nomological hypotheses. Law, stipulatively defined as a particular class of psychical phenomena (psylaw) — namely, as perceptions/representations of actions coupled imperative-attributive emotions (a concept close to sense of entitlement) — is the proximate cause of conflicts and, in turn, of unifying tendencies somewhat counteracting them (positivization, formalizations, dikaspolization — from dikaspoloi). Further, psylaw causes the emergence of soclaw, understood as a gradual phenomenon whose degrees of existence increase with the degree of compatibility of the jural phenomena (psylaw) occurring in a given society. If psylaw is the distal cause of phenomena like states or market economies, soclaw can be regarded as their proximal cause, and so can be regarded as a legitimate scientific concept. In the remaining parts of this essay Fittipaldi defends the distinction between of intuitive and positive psylaw, and underscores the need both of legal dogmatics (understood as including deontic logic) and of sharply distinguishing it from psylaw and soclaw, thus implying that strict Petrażyckianism is probably incompatible with integral concepts of law.
Decisions of the European Court of Human Rights made a contribution to the development of the theoretical conceptions describing relationship between International Humanitarian Law and International Human Rights Law by specifying direction to a wider application of human rights norms regulating right to life in armed conflicts. This article deals with three main directions of this development: firstly, the strengthening of examination in sphere of fulfillment by states of their negative obligations concerning right to life, secondly, specification of duties on preventive measures serving for protection of civil persons and objects, and, thirdly, enlargement of the scope of application of the obligation on prosecution of lethal cases in armed conflicts.
The article is devoted to the analysis of the attempt to transform the Spanish monarchy in the Federal Republic and its legal regulation in the constitutional draft of 1873. The establishment of republican form of government was due to the actual impossibility and uselessness to restore the monarchy. It was also considered to be a condition for the federalization of Spain, a contribution to the realization the principle of sovereignty. The constitutional design of the Federation was based on the historical features of states of the Iberian Peninsula and multidimensional understanding of sovereignty. The idea of vertical and horizontal separation of powers provided in the constitutional project of 1873 became the basis of the desired state organization and of the functioning of public power. A novelty of the application of principle of separation of powers is the introduction of the forth power named connecting power (besides three classic ones – legislative, executive and judicial), which belonged to the President of the Republic. It was established to perform in the system of state bodies the functions of a head of state and of a mediator. The importance of the experience of 1873 is found in the analysis of the state organization of Spain according to the Constitutions of 1931 and 1978.
The article deals with the problem of correlation between private and public interests within business corporations. Development of a human society has led to the specialization of labor and pooling of production resources. The funds of the majority are under the control of the elite. Using their position, controlling persons of commercial corporations may derive economic benefits at the expense of other shareholders, employees, counterparties and society as a whole. Through taking excessive economic risks, large corporations generate systemic economic crises harming persons not directly involved in the business activity. These problems have given rise to the questions about social corporate responsibility or, in other words, in whose interests the managers of business corporations should act. Having examined the main theories of a legal person, as developed in the Soviet Union and the Western countries, the author bases his study on the contractual theory of a corporation and on the transaction cost theory. Since the future results of a corporation’s activity are unknown, the contracts between a corporation and its members cannot be determined to the fullest extent. Unlike contractual creditors, shareholders investing funds in the authorized capital of the corporation are not in the position to bargain for the ‘price’ of resources given to the corporation. Therefore, until the specified legal facts occur, the members have no property claims to the corporation, but rather only a ‘hope’ protected by law. This feature separates internal corporate relationships from proprietary relations and matters of obligation. The specific nature of corporate relationships determines the fact that managers of a business corporation shall not act contrary to the lawful common interests of members of the corporation. The managers’ right, much less the obligation to act in favor of public interests contrary to the members’ interests contradicts the nature of the corporation
The author examines the problems connected with a too broad use of the term “law” in the contemporary language. Such discourse about law which has no clear limits is defined as Novdroit. This narrative destroys the language used by the lawyers and introduces a new ideology instead. Under the guise of political correctness this ideology perverts the original sense of the old words. Studying the polysemanticism of the term “law” in the contemporary discussions, the author draws that the ambivalence of “law” can easily be used in the political purposes to legitimate the existing authorities and their rules.
In the article, the author examines the state sovereignty: the classical definition, from the absolute sovereignty to the theories, leveling it as a concept outlived and unnecessary in the modern world. Analyzes the idea of a sovereignty as an essential feature of the state, as opposed to the ideas that it is the feature of the power. The author discusses the question is the sovereignty a set of rights and powers of the state or it serves only the formal legal possibility to have the rights and powers. Emphasized on the review of such essential characteristics of sovereignty as independence and indivisibility or divisibility. The transformation of sovereignty in the result of globalization in connection with the activities of supranational institutions is also analyzed in the article. A distinction between the concepts of “state sovereignty” and “international legal personality” is made.
The author concludes that the sovereignty is not an absolute, but relative, limited and conventional phenomenon. Sovereignty is relative because of its dependence on the historical and socio-cultural context. It is limited because of different limiters in different eras: God, the Church, national law, international law, human rights, supranational institutions. The context of sovereignty is determined by interdependence with other social and legal phenomenon, with the society and it updates in every new era, that means it's conventionality. In addition, the concept of sovereignty includes also the legal communication. Legal communication in the context of sovereignty can be found in two aspects: internal (the legitimate activities of the authorities in the state in accordance with national and international law) and external (foreign policy in accordance with international law) and involves conditionality of sovereignty by public opinion, as well as international recognition. This internal and external legal communication are an essential feature of the sovereignty in the constitutional state.
In this work Georges Gurvitch examines the principal philosophical ideas of Boris Chicherin and Vladimir Soloviev about law
The article analyzes the political and legal aspects of the formation of personal power of Franco in Spain, whose official position was defined as "Head of State", and its subsequent history.
This article deals with the objectives and the main areas of activity of the European Academy of Legal Theory. The authors point out at the challenges which the contemporary world put before the legal theory. They analyze the experience of the European Academy of Legal Theory in addressing these challenges. In particular, they touch upon the issue of innovative technologies and renewed priorities in teaching legal theory. The authors focus on the efforts of the Academy to lay down a framework for a united intellectual environment for those who teach theory of law and conduct their scientific research in this field. One of the characteristics of these efforts is the project AMELIE. Its objective is to introduce a united master program in legal theory where several big European universities will cooperate. In conclusion, the authors stress the necessity to reform the system of legal education in Russia and consider it appropriate to examine the positive experience of the European Academy of Legal Theory in this regard.
The article provides a brief overview of life and works by I. Kh. Ozerov (1869-1942), a professor of financial law at Moscow and St. Petersburg State Universities, in terms oh his contribution into financial and legal studies in Russia at the turn of the XIX-XX centuries. The article precedes the publication of a work by I. Kh. Ozerov On the research methods in financial studies which formulate the sociological methods of investigating the financial relationships.
The article is devoted to the ideological and legal sources of formation of the concept of head of state in Spain, different from a contemporary textbook model. The Spanish concept goes back to the Roman and medieval political and legal ideas which perceived a king as a head of a community (kingdom, republic). It is shown that initially the concept of head of state was recognized in Spanish constitutional law influenced by foreign jurisprudence which has generalized the experience of constitutional development of European and American states. The originality of the Spanish concept manifested itself in the 20th century. It was considered to be useful for constitutional acts and was adapted to political and legal realities of the country taking into account theoretical and legislative experience accumulated both in Spain (including ideas of F.Suárez) and in other countries (including Brazil). This concept was applied for the first time by the republicans in the Constitution of 1931 to define the place of the established president office within the system of state authorities, based on the experience of 1873 and the ideas of B. Constant. During the period of Franco’s dictatorship the office and later the institution legally named “head of state” was constituted. Its consideration as an extraordinary highest magistracy (until 1947) was close to the model proposed by S. Bolivar during the struggle of Spanish colonies for independence. Making the said concept universal (it covered the future king as well), the caudillo borrowed the concept of the head of state with its supremacy within the system of state powers from the legislation of France, Germany and Italy. The concept and the institute of the head of state appeared to be very effective in transition of Spain from an authoritarian regime to a democratic one after Franco’s death. The Constitution of 1978 established the Crown (as a version of the head of state) and the king status as the head of state. They are based on the country’s historical experience and reflect the identity, continuity and systemic nature of its constitutional institutions. The author concludes that the concept of head of state had different contents during various periods of the Spanish history.