This paper is an attempt to understand the causes of appearance of the term “soft law” in modern legal discourse. Found common communicative attributes of the phenomena of “law” and “soft law”, which allows at the same time distinguishing both from other social commitments. It is shown that soft law should be seen as a kind of law in a polycentric legal system. The idea of a polycentric legal system appeared in legal discourse in connection with the exhaustion of “capacity” of the legal apparatus of the state. The way to ensure the rule of law principle in a polycentric legal system is considered.
This is the second paper from the series of two papers. In the first paper based on the communicative approach the main attributes of soft law in modern legal discourse were considered and their study showed that the modern legal systems moving from mono(state)centricity to a polycentricity. In this paper, through the prism of various legal theories the causes of this phenomenon are discussing. The research shows that the exhaustion of the capacity of the state both in regulation and in dispute resolution dictates the deviation from the legal monism and decentralization of law. It is also showing that some kinds of decentralization of law do not retain legal clarity and rule of law. Decentralization of law by creating a field of homogeneous legal communications does not allow preserving legal clarity, whereas polycentric one does allow.
The object of study in this article is the theory of Private International Law developed by the German scholar Heinrich von Cocceji in the 17th century. The contribution of this scholar in the development of PIL doctrine has not yet been studied in the Russian literature. The article investigates the Cocceji’s thesis, in which he examines the question of conflicts of different national laws and determining the applicable law. In considering these issues, the German scholar uses the methodology of his French and Dutch precursors – the supporters of the theory of statutes, and he argues in line with this theory. The basic Cocceji’s difference from the classical theory of the statutes is the starting point of his reasoning – he does not attempt to delineate the legal provisions and their scope, and he sets the specific connecting factors. This is a very important difference, just anticipating the approach of the modern legislator to design the choice-of law-rules. In addition, he constructs a separate "action statute," including not only questions of the form the act, but leading to the generation of abstract connecting factor for determining the law applicable to the general concept of action. The article been concluded that the main Cocceji’s contribution to the development of the PIL doctrine can be considered his assertion that the choice-of law-rules are publicly-legal nature and the basis for solving of conflicts of laws is the international law - "the international consensus of nations."
Manifestations of crisis in Russia and other countries stimulate the effective use of law resources. Complicated processes in legal sphere encourage exploration of their tendencies and new vectors. Acknowledgement of the supremacy of law is not accompanied by a single-line trend of ensuring its actual high role in the society, one can observe phenomena of lawlessness and legal nihilism. That is why it is important to search for new aspects of legal regulation, among other things, by means of using alternative social regulators. In particular, we mean other alternative social norms that do not contradict the law, including non-state sources of law-making and self-regulation. Such phenomena can be observed both in the national law and in the sphere of international legal regulation where new forms of international obligations and self-commitments of states are successfully applied along with the traditional contract forms. Tangling of the abovementioned vectors is weakened by the tendency to power struggle with the law, when violence breaks down the legal framework foundations. That is why values, principles and fair legal rules enrich the social potential of the law.
The article is devoted to the rule of law in rulemaking activity of the Russian Empire ministries in the XIX – early XX century. The complex of control methods in rulemaking activity of the ministries in the Russian Empire is reviewed. The content and structure of control and supervision mechanism in the law-making activity of the Russian Empire ministries is presented. The difference of approaches to the perception of control and supervision as a means of enforcing the law in the Russian Empire and modern Russia is defined. The conclusion about similarity of the ways of providing the rule of law in rulemaking activity at different historical stages in the Russian Empire is made.
The article analyzes the conformity of new amendments to articles of the Criminal Code of the Russian Federation concerning the protection of state secret with permissible restrictions of fundamental rights and freedoms. It reveals the topical and timely nature of the introduction of changes in the Russian criminal legislation. Their importance is emphasized in order to guarantee the security of Russian citizens, the whole society and the state. Special attention is devoted to the theoretical and practical aspects of restricting fundamental human rights and freedoms. International documents, the practice of the European Court of Human Rights, and the writings of experts in the concerned fields are all analyzed.
ksArticle is devoted a problem of definition of legal status of technoparks, as one of elements of an innovative infrastructure. On the basic of research of the federal and regional legislation? the basic signs of technoparks are defined. The rather-legal analysis of foreign experience of regulation of creation and activity of technoparks is resulted. In article proposals on legislation perfection in considered sphere are made.
The article analyzes the legislation in force as well as the legal opinions that exist with respect to the legal treatment of public services, legal powers, and administrative functions of the executive authority. The author notes the ambiguous and contradictory nature of legal regulation in the sphere of public services and the absence of a uniform approach to understanding them in the Russian law theory. The existing legislation defines public services through administrative functions or works or activities or legal powers. This is unacceptable from the standpoint of legal writing as clarity and unambiguousness of terminology adopted in legislation is one of the most important factors of its efficiency and of the quality of state governing. The author concludes that public services, legal powers, and administrative functions are widely different terms that denote different legal phenomena. "Legal powers" and administrative functions are an institution of public law, whereas "public services" belong to the domain of private law.