Law as a regulator of the conduct of social subjects cannot be directly equated with other methods of controlling the behavior in society. The grounds of legally significant actions allow determination of the context of the application of legal rules. The meaning of each legal term, as argued by L. Wittgenstein, depends on its “context of use” and the conventions of use at the moment. Therefore, the interpretation of the rules cannot be based solely on the principles of logic and be completely neutral. On the one hand, “we follow the rule blindly”, but at the same time, the repeatability of the behavior of other people and the ability to observe their behavior (by analogy with the mathematical concepts of addition and sum) encourage “learning” the rules and acting in accordance with the rules. The ascription of the legal language and the “imputation” principle of the legal interpretation of facts allow defining a key concept that cannot exist beyond the constructed social reality. The attempts to analyze non-legal factors appeal not to legal arguments but to other phenomena. The legal term in its nature not only describes empirical facts but also encourages action. The most dismal example of a change in philosophical argumentation and legal reasoning in the philosophy of law is the influence of Quine’s arguments. In the context of the methodology of legal explanation, the naturalization of the epistemology of law is possible only when the limitations and specifics of traditional methods of interpretation of legal reality are considered. The article focuses on the analysis of some arguments made by the analytical legal philosophers regarding the linguistic content of legal rules with no reference to any social determination or formulation of the significant judgments about the linguistic nature of legal reality.
Reconsideration of legal phenomena by legal language means is a typical feature of analytical tradition in the legal philosophy, since legal regulations are expressed not only in language, but are inextricably linked with the linguistic content of rules whilst applying them. Language as a form of communication and representation of the world is a holistic and specific phenomenon, that is localized in speech acts that form subject’s intentions and his further actions. It is necessary to count the meaningful use of signs for the reality perception, that form the language. Legal reality and its language forms are inseparable, and thus, we can learn more deeply the essence of legal phenomena by interpreting legal texts and speech acts that illustrate legal intentions and actions. So in the speech acts theory of J.L. Austin introduces the category of commissives, denoting the obligations declared by the intentions of the person (promise, agree, intend, plan, provide, allow, swear, etc.). In legal language speech acts are used with the purposes of execution, prohibition, coercion for maintenance of a social order, therefore legal discourse has performative character. Performative expressions in legal language are characterized by speech stereotypes due to repetitive procedures (for example, procedural actions in criminal proceedings or court hearings). If it is a question of acts of application of the right, from the point of view of their performative form they have declarative character, that is contain instructions and obligations of legal character. The illocutionary function of these proposals is to form a respectful attitude to the established norms, and the perlocutive force is to impose compliance with these norms. The question of the relation of speech acts and actions in a different context was considered by Gilbert Ryle. Ryle’s key thesis is that the workings of consciousness should not be described as a complex of some point operations, but rather should be Speech acts and actions in legal language: conceptual analysis understood in the context of observed human behavior. Consciousness is determined by the actions of the subject, not by the construction of metaphysical entities. As a man thinks, so he acts. If the researcher inspects the scene of the accident, the notary certifies the authenticity of the documents drawn up, and the judge gives arguments for the adoption of a legitimate judicial decision, they do not need the whole set of causality relationships in nature, or an explanation that human behavior is completely determined, that he is not free, because he can not control the mental processes in consciousness. H.L.A. Hart defines the essence of legal statements and their ascription of attributing legal value of a particular performative speech acts. The arguments on the specific features of legal statements in the context of the existing concepts of J.L. Austin, J. Searle, H. Hart and their critics.
In the active digitisation of tax administration, the problem of a lack of legal regulation that is adequate for the level of automated tax control systems applied by tax authorities is particularly sharply observed in law enforcement in the area of taxes and levies. As a result of global gaps in the legal regulation of tax control in the conditions of digitisation, the constitutional principles of taxes and levies are eliminated. This leads to a wide-scale violation of the rights and lawful interests of taxpayers, tax agents and financial organisations and entails a loss of faith of society in institutions of the state and the law. This problem may be resolved only by way of the proper legalisation of automated tax administration processes both in the context of the administrative procedure of tax control as well as in the administration of the related administrative procedures of recording taxpayers with tax authorities and informing them about the rights and obligations in the area of taxes and levies that have the nature of both property and managerial. At the same time, the administrative discretion of tax authorities should be restricted to the maximum degree but the potential discretion of the tax authorities is permissible only within the bounds of the law. The above goals are attainable only by way of developing the institution of administrative procedure in tax administration, which should be unified in the Federal Law ‘’On Administrative Procedure’, while the specific aspects of applying it in the area of taxes and levies need to be provided for in the Russian Tax Code taking account of the current level of digitalisation of tax control.
The implementation of the language rights of citizens living in a multinational state, especially their right to choose a communication language in the public sphere and the right to preserve and develop it, is inextricably linked with the status of the language in the state as a whole or in any administrative-territorial unit, such as a region, province, district, rural settlement, etc. The absence of a legislatively recognized status of a non-state language, when it is widely used in a particular area, as well as the non-recognition as separate languages of certain sign systems used by ethnic minorities often serve as a catalyst for social contradictions. At the same time, giving a certain status to a language is a complex task, the solution of which, according to the author, requires an integrated approach that takes into account not only constitutional and legal norms and international standards, but also the linguistic, socio-political, economic and cultural realities prevailing in each specific situation.
The purpose of the research in the framework of this paper was to analyze the main approaches to determining the status of a language, as well as to develop our own concepts of endowing the language with a particular status. The author covers the main classifications of languages by status, both used in domestic and foreign doctrine, and contained in legal provisions. Their advantages and disadvantages are analyzed.
The research methodology included general scientific and special legal methods, among which preference was given to retrospective, statistical and comparative legal methods, as well as modeling, generalization, and legal forecasting methods. An important role in the study was taken by the analysis of the Russian and foreign legal framework, the work of legal scholars and linguists in order to establish the national specifics of regulating the status of languages of ethnic communities in different countries. A special place in the methodological base is occupied by the work of such lawyers as F. de Varennes, A.K. Soboleva, N.V. Shelyutto.
As a result of the study, conclusions were drawn up about the need for an interdisciplinary approach to the legal regulation of the status of languages, including the need to use data from other sciences to derive definitions of the state and official languages, minority languages, and mother tongues. Legal and theoretical problems, in addition to difficulties in deriving definitions, also include finding answers to questions on whether the guarantees for choosing a communication language apply to dialects and signal systems used for communication in a particular community (for example, sign language for deaf people), how many levels of state and official languages can exist in a federal state, how does the "main" state language correlate with the state languages of the constituent entities of the federation and the official languages of autonomies or other national-territorial units, how the legal regulation of the status of various languages is related to the history of the state, political situation and language policy conducted by the legislative and executive branch of power.
There are two traditions of determining the foundation of legal validity – metaphysical and anti-metaphysical. At the beginning of the 20th century the anti-metaphysical tradition was supplemented by psychological realism, which was developed in the framework of the Uppsala School and the psychological school of Leon Petrażycki. It is possible to trace the common line of reasoning on the problem of legal validity within Continental or psychological legal realism: from Petrażycki (and his students) and Axel Hägerström (and his students, including Alf Ross) to Enrico Pattaro. Psychological legal realism is an approach to law that can be characterized by 1) an orientation toward the study of law in the context of facts of psychophysical reality; 2) the idea of the psychological nature of law; 3) recognition of the authoritative-mystical nature and objectification of legal experiences; 4) the irreducibility of law to the behavioral aspect; etc.
The term “Uppsala School of Legal Realism” denotes the theoretical legal position of scholars from Uppsala – Hagerström and his most faithful students, Anders Vilhelm Lundstedt and Karl Olivekrona – within the framework of a broader Scandinavian legal realism as part of the continental realistic tradition. The philosophical foundations of the Uppsala School of Legal Realism include: rejection of subjectivism and metaphysics, naturalism, non-cognitivism. This school paid special attention to questions about the possibility of scientific knowledge about law, the construction of a value-neutral theory, and the search for reliable methodological foundations for the science of law. The revolt against subjectivism and metaphysics led to the assertion that there is – and can be the subject of scientific knowledge – only one reality, namely spatio-temporal, psychophysical. Since legal concepts do not directly correspond to the facts of such a reality, they are considered as illusions and even magical formulas, which, however, are based on actual psychological facts and have an effect on people's consciousness.
In the framework of the Uppsala School from a realistic point of view law appears as a machinery of coercion, as a factual order based on the organized social force. Within that order the rules of law are independent imperatives and motives of behavior, which have a suggestive, binding effect on the consciousness and behavior of people. The validity of law is determined by the power of organized social coercion and is regarded as a complex phenomenon of the people’s inner world. As a complex psychical fact, legal validity is considered a psychological self-binding engendered by the physical coercion machinery in action and the influence of cultural, social and even biological factors.
The article is divided into two parts. In the first part the author looks into the evolution of the concept “Europe” from geographical names in antiquity to the “Christian republic” in the Middle Ages and giving a political content to this term after “ the Glorious Revolution” in England in the XVII century. The factors of religious character and, first of all, the antagonism between the Christianity and Islam served as a main driving force of this evolutional process. The struggle against the Islamic expansion became a principal argument in favour of the development of different trends aimed at the creation of the United Europe and led to the working out of various projects of unification. This work lasted till the end of the XIX century. The resulted drafts are mainly considered from the institutional point of view of the proposed organization and mechanisms regulating the relations among the member –countries in the commercial and judicial fields. The second part is dedicated to the analysis of drafts of the United Europe in the interwar period and to the practical realization of the “European idea” after the Second World War through the foundation of the European Economic Community in 1957, transformed later into the European Union. In the conclusion the “Neo-functionalism” doctrine and Interstate Theory of Integration are analyzed.
The history of political ideas exemplifies that frequently the attempts to limit validity of the positive law were undertaken with the use of such ambiguous expressions and concepts as “nature of things”, “people’s spirit”, “class interest”, and other concepts which introduce subjective suprastatutory criteria of validity of law making them appear as objective ones. In author’s opinion, one of such ambiguous concept is that of legitimacy. One can hear that illegitimate regimes can be overthrown by the way of revolution, that illegitimate norms can be circumvented and violated, that legal but supposedly illegitimate rights and interests (for example, those of religious and other minorities) can be deprived of legal protection. The objective of the present paper is to analyze these questions and to establish whether the concept of legitimacy of law can be utilized for defining the binding force of law. It is underscored that an indiscriminate use of the concept “legitimacy” in propositions about validity of legal norms can result in violations of such norms by their addressees because of the alleged illegitimacy of these norms. It is important to underscore the centrality of the distinction between descriptive and prescriptive propositions in such situations in which one makes argument that a government is illegitimate as having no social support and for this reason one infers that it is legally allowed to change this government or discard the legal rules enacted by this government. Lawyers should pay particular attention to such propositions about legitimacy of legal norms where legitimacy or recognition are applied in the purposes of justification of these norms: here these criteria work out as parts of a value judgment that might potentially justify illegal behavior.
The contemporary level of scientific knowledge in the realm of jurisprudence rules out metanarratives about essence of law. Legal pluralism, being one of the consequences of globalization, has become one of the incontestable facts of the legal reality; legal regulation is now carried out on many levels and in a multiplicity of forms. This implies that essentialist discussions about the nature of law are out of date. Russian legal theory until now has relied on the essentialist scheme of le gal thinking, in which a definition of the law is the starting premise and the binding force of law is justified with reference to the category of sovereignty. This scheme involves contradictions between: claims from the constitutional discourse about the supremacy of human rights and the priority of principles of international law or balance in lawapplication, on the one hand; and the theoretical foundations of such claims, on the other hand. The style of legal thinking based on the legal scholarship at the beginning of the XX century can show the inadequacy of philo sophical and theoretical conceptualizations of the key problems of legal science such as sources of the binding force of the law, limits of the rulemaking power of the state, and the correlation between legal orders created by the state and by other social institutions. Legal education and scholarship in Russia are still pre supposing that state power prevails in the issues of lawmaking and lawenforce ment; this justifies the absolute and unlimited character of state sovereignty and the other key ideas in the first versions of legal positivism. Because of the iron cur tain in the previous years, in the late 1980s Russian legal philosophers and theo reticians found themselves unprepared to make a theoretical conceptualization of the effect of globalization. Moreover, during many years they just ignored the prob lems that are connected with this effect. Nonetheless, in the scope of these years the Russian economy and, to a large extent Russian law, have gotten involved in the processes of globalization, including the processes of fragmentation and the pluralization of legal orders. This has resulted in a considerable gap between legal theory and legal practice.
The paper deals with the problem of creating a stable order in Russia based on the rule of law. So far, all efforts to create it have failed. The instability of the rule of law in Russia is explained by the fact that attempts to create such a regime were limited to infrastructure reforms and modern proposals to reform the legal and political systems are reduced to infrastructure changes. The author shows that despite the importance of infrastructure, the main reason for the instability of the rule of law in Russia is the legal consciousness of citizens. At the beginning of the XXI century, the concept of "social norm of the rule of law" was introduced in scholarly debates and it was shown that the presence of this social norm in their legal consciousness is crucial for the observance of laws by members of the community. The paper builds a model of legal consciousness of Russian citizens (the "homo legalis" model) and shows that they do not have this social norm. But contrary to popular opinion, Russian citizens are not legal nihilists, but legal utilitarians. Accordingly, the stability of the rule of law regime in Russia can be achieved if conditions are created for the emergence of a social norm of the rule of law in the legal consciousness of Russian citizens. Three ways of creating such conditions are considered and it is shown that, contrary to popular opinion, such a social norm can appear quite quickly. The practical possibility of transformation of the Russian legal system is shown, based on the most realistic of these three methods and based on the constructed model of the Russian "homo legalis".
The article explores the concept of information security in the information space, the reasons for possible violations of individual rights, society and the state in this area. Main attention is paid to violations of the rights of the individual, society and the rights of the state. Such offenses are partly related, for example, to the fact that the development of hardware and software technologies are not taken into account the principles of openness and transparency.
In this article the author attempts to estimate the influence of the Internet on the copyright policy. Three main theories of copyright justification (labour, personality, utilitarian) are reviewed. The aim of this review is to find reference points for development of copyright legislation. In conclusion the author presents suggestions about the role of economic rights in the context of development of information technologies.
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.
The ancient rhetorical canon and the Russian rhetorical tradition, including pre-Soviet tradition of judicial rhetoric, considered ‘orator/rhetor’s character’ as a central part of the ethical appeal, according to which the rhetor achieves the consent and adherence of the audience to his decisions when he possesses outstanding intellectual and moral characters. This is especially true when rhetors are persons who are vested with powers and authority, and thus can influence people due to their high position in the society. Judges inherently are influential rhetors, and they must be the epitome of the rhetorical ideal. The rhetorical character of a judge as a person of sound sense, high morals and benevolence found its reflection in the decisions of the European Court of Human Rights. More frequently the ECtHR refers to ‘judge’s discretion’. As far as it poses restrictions on public presentations made by a judge and prevents him from commenting the on-going trial proceedings, the equality of the participants in the act of communication is secured by the imposing restrictions also on other participants of communicative exchange – journalists, lawyers and parties to a case, who should restrain from insulting words and unsubstantiated personal attacks on judges, as well as avoid putting pressure on judges through formation of public opinion about how a certain case must be resolved by the court. The analysis of the judge’s image from the point of view of the rhetorical ideal, where the judge is included in the communicative act of decision-making, stresses the importance of the positive image of judges and judiciary for the legitimization of the judicial decisions and support of public confidence in judicial power. However, the judge’s image of vir bonus – a respected, honest and discreet person - should be supported not by silencing the cases of judge’s wrongful behavior, but by judge’s support of his image of vir bonus by his high morals and good behavior both inside and outside the courtroom. A judge must be a man of high ethical standards, not just seem to be the epitome of the rhetorical ideal.
. In his paper "The Influence of Normative Reasons on the Formation of Legal Concepts", German legal philosopher Lorenz Kähler attempts to give a theoretical and philosophical understanding of the legal normativity in terms of disclosure of normative reasons that determine the choice and definition of the legal concepts. Despite the broad context of substantiating the problem under study and ways to solve it, the author formulates a number of controversial and disputable provisions. Among them, we can note the ambiguity and uncertainty of the content of legal concepts that are projected by the author exclusively on the field of legal norms, which does not allow us to correctly distinguish the process of cognition of legal phenomena and the application of legal norms. The analysis of the problem of normativity is carried out from the position of separating the normative legal order from the field of empirical facts without the possibility of correlating normative prescriptions with factual circumstances and actions (the normative grounds of which are the main point of L. Kähler, s research). The paper offers a number of critical arguments that demonstrate the methodological incorrectness and unreasonableness of certain judgments of L. Kähler, as well as conceptual decisions about the relationship between facts and norms in the context of the boundaries of normative and factual law.