This article deals with the key ideas, theses, and schemes which are elaborated in the book of the Hungarian researcher Csaba Varga. The reviewed book is focused on the issues of codification. Professor Varga pays particular attention to interconnection of codification projects and the social, cultural environment in which these projects are conceived and carried out. Even if the techniques of codification are similar or analogous to each other, this does not guarantee similarity or identity of the reached results. Such results are summing up from a multitude of different variables. The monograph of Csaba Varga examines these variables, and a special accent is made on analysis of the ideals which are pursued by initiators of codification projects. A total codification of law or creation of a gapless and consistent legal system is, in Professor Varga’s opinion, nothing but a utopian dream which nevertheless plays a decisive role in codification. The author of the reviewed volume proposes a complex and multifaceted classification of different kinds of systematization of legal norms. He stresses interdependence between the strategies of codification and the types of legal culture, the social and economical tasks to be achieved as a result of the codification.
The authors of this article consider some issues connected with the theory of legal communication. These considerations are based on the presentations made by the authors at the German-Russian scientific symposium “Legal communication in the contemporary legal system” which took place at Law Faculty of Saint Petersburg State University on December 6, 2012. In authors’ opinion, it is not possible to explain the multifaceted reality of law with the help of monistic and unilateral theories. To arrive at an adequate explanation, one needs to refer to wider philosophical categories capable to describe societal (factual), normative, and ideal aspects of reality of law. The conception of “communication” might play this role in the contemporary jurisprudence. The idea of communication in law is deeply elaborated in the nowadays German legal philosophy, but it also is present in the Russian legal discourse. This thesis can be substantiated with reference to the work of Leon Petrazycki and of other representatives of the Saint Petersburg school of legal philosophy. Already in the first half of the XX century they formulated the problematic of legal communication and attempted to analyze it in the terms of legal philosophy of their époque. It is vital to take into consideration the opinions developed by the representatives of this school and to use their ideas as an intellectual itinerary in (re)constructing the philosophy of legal communication in Russia. This approach is also an important premise for the scientific discussions led by Russian and German legal scholars in the scope of “Petersburg Dialogue”.
The author talks about the state in the context of globalization, about the features it should have in order to confront the current challenges. As a result of globalization processes, according to many researchers, the role of the state has become increasingly contested both within the state and at the international level. States are forced to develop in a more open and interdependent world, as a result they are going through a fundamental transformation of the underlying rationality. At the same time, the state in the realities of the global system is becoming one of the main tools to adapt society to the new conditions. In order to fulfill its role effectively, the government must meet the latest requirements and possess certain characteristics. The author offers a definition of the state: the state — a condition of social communication, constructed and institutionalizing at a certain stage of development of society, characterized by unity of the public authorities and the people, united by the law and territory. From this definition shows the following constitutive features of the state: social communication, institutionalization, the unity of the public authorities and the people, law and territory. The author provides an analysis of each of these features, puts attention to the great role of the legal and spiritual communication as a link between the foundations of society and the state.
In this article the author examines the problems connected with definition of nature of constitutional interpretation. On the base of the cases from the judicial practice, Michel Troper shows that specificity of constitutional interpretation does not reside in particular character of constitution which is the object of interpretation. According to this French theorist who is leader of the school of French legal realism, the particular trait of constitutional interpretation is due to the fact that this kind of interpretation results in constructing a hierarchy of normative acts in a given legal order. Even if such a hierarchy is described in a constitution, it will nevertheless remain hypothetical and subject to changes through an act of constitutional interpretation. Michel Troper insists that a meaning of a legal text cannot be defined prior to interpretation; therefore this legal text will not have any definitive content before being interpreted. The French theorist concludes that a legal norm is not created by the way of legislation — it is created through authentic interpretation of the legislative acts. As authentic interpretation the author holds such construction of a legal text which brings any legally relevant consequences having binding force in this given legal order, there consequences being immune to overruling by any higher instance. Such interpretation can be exercised both by judicial and non-jurisdictional bodies.
Author refers to the problem of the legitimacy of constitutional review and proposes to solve this problem through deliberative communication. The problem of legitimacy arises from the fact that the legislator has been democratically elected while judges were not. Therefore, court decisions as a result of reviewing the unconstitutional rules, seem to be not legitimate.
To justify the legitimacy of these decisions, Van Hoecke offers the concept of "circular relationship" and "communicative circles". Circular relationship is found in the case when the European judges are controlling national legislators, and also at the level of the relationship between courts within the national court structure. This circular relationship is one of the ways in which a new conception of democratic legitimation of law creation is currently developing, including at the level of international law.
As law is constantly made in and through legal practice, legitimation too is constantly achieved through deliberative communication. The first communicative circle is to be found in a trial, when parties try to convince each other and the court, then the court try to make both parties to accept its decision. Further, if the court decision fails to convince both parties, one of them takes the case to a higher court. So, it is a second communicative circle. If the case will be interesting enough for publishing, the legal community will offer its view on the decision - this is the third communicative circle with a professional interpretive community.
If the discussion of this case will be discussed not only within the legal community, but also by non-legal audience in media, this is a fourth communicative circle involving a public forum. And finally, the fifth communicative circle involves the whole public sphere of that society.
Discussing these processes of deliberative communication, Van Hoecke shows how the public debate is a necessary condition for democracy and, hence, for democratic legitimation.
In this paper are summed up the principal ideas of a book by the contemporary French legal scholar Jasques Le Goff. This book was dedicated to analysis of the sociological conception of law by Georges Gurvitch. In the context of theoretical problems of the nowadays French labor law Professor Le Goff tries to outline a new methodological approach to law. According to Professor Le Goff, one needs to abandon both anarchist ideas about spontaneity of legal development, and the etatist legal positivism which conceives law as primarily emanating from state. Appropriate methodological tools for a correct analysis of law Professor Le Goff finds in the works of the French-Russian thinker of the 20th century Georges Gurvitch who was famous for his conception of social law. Gurvitch treated law as a form for institualization of social communication between individuals and groups. This approach can serve as a conceptual foundation for explaining the contemporary lawmaking processes in the nowadays French labor law where law to a certain extent is created without intervention of state.
Based on the writings published in the second half of 1920s, the article focuses on the conceptual debates between sociologist, legal scholar George Gurvitch and the Eurasianists (Nicholas Alexeyev, Leo Karsavin, etc.).
These debates highlightened the competition of two cholistic doctrines: Eurasianism (that substantiated the Social Unity in the geopolitical entity of “Eurasia”) and Gurvitch’s “Theory of Social Law”, which based this Unity in the sociological roots by recognition of legal experience as collective phenomena.
However, Eurasianism, as a doctrine, was pluralisitc. Collectivist tendencies, which revealed in the writings of Leo Karsavin and Nicholas Trubetskoy, were balanced by apology of Individualistic Personality in the articles of Nicholas Alexeyev an Petr Savitsky. That’s why the research reveals not only the distinctions, but also the common features between legal views of the scholars. Gurvitch’s ideas were close to the Alexeyev’s views in the point of recognition of “values” in Law and “imperative-attributive” character of Law. Gurvitch’s conceptions are also similar to the “Alleinheit” theory of Leo Karsavin in emphasizing the collectivist grounds of Law. These similarities were based on the nearness of Eurasianism and Gurvitch’s ideas to the Russian Religious Philosophy, the Psychological theory of Leon Petrazhitsky and the European Phenomenology.
This article is an introduction of the translators to the article of B. Melkevik
The article analyzes little known archival documents 1857–1859 (official reports and analytical notes by count D. N. Bludov, prince D. A. Obolenski, S. I. Zarudny etc.), devoted to the drafting of the Charter of Civil Procedure and the preparation of the reform of the judiciary as a whole. In the center of the discussion on the future court system of the Russian Empire in the highest government circles was not only the content of the judicial reforms, but also the methods and the rate of renewal of the legal system. With the deepening of discussions reformers cared less about how to maintain a balance of tradition and innovation in a changing legal order, on the validity of the volume of borrowing of foreign law, moving away from an adequate reflection of the contradictory social reality in legal structures to their ideal forms. Methods of influence on the emperor and members of the State Council of the Russian empire, which aimed to change the direction of the discussion and passage of the bill in the upper legislative and deliberative authority were first tested in the early 1850s in the legislative practice of the Admirality Board (Ministry of Marine). At the beginning of the era of the Great Reforms they became a clear manifestation of the aging of the new political and legal culture in the field of legislation generated by the need to reform the scale of public relations.
Researchers get easily lost when embarking on comparative legal research. The main reason being that there is no agreement on the kind of methodology to be followed, or even methodologies that could be followed. Moreover, almost everything that was more or less established in the area of comparative law over the last century has been increasingly criticised during the last few decades: the concept of ‘legal family’, the possibility of comparison itself, the object of comparison, etc.
On the other hand, comparing domestic law with the way the same area has been regulated in one or more countries has become almost compulsory in doctrinal legal research.
How should a comparative researcher cope with this apparent paradox ?
In this paper an attempt is made to work out a methodology for comparative legal research, which goes beyond the ‘functional method’ or methodological scepticism.
The starting point is the idea that we need a ‘toolbox’, not a fixed methodological road map, and that a lot of published, but largely unnoticed, research offers varying approaches, which could usefully be applied in comparative research. Basically, it is the research question which will determine which methods could be useful. Moreover, different methods may be combined, as they are complementary and not mutually exclusive.
This paper deals with the basic perspectives of the article by the famous Argentinian legal scholar Eugenio Bulygin that was devoted to the problem of efficiency of law. That article has been written in the very beginning of scholarly career of Professor Bulygin; it reflects the level of discussions on this problem in the world legal science in the mid- 1960s. Professor Bulygin analyses how efficiency of law was thought as per validity of law in the conceptions of the leading representatives of legal positivism such as Hans Kelsen, Alf Ross or Herbert Hart. Bulygin asserts that the correct way to think objectivity is to accept that it is possible to deduce a judicial decision from a general rule of law. For Bulygin, the key to solve this problem is to draw the distinction between legal rules and legal propositions with the help of which legal rules are posited. From the standpoint of Bulygin’s conception of efficiency of law, legal rules are effective if they are applicable or justiciable. Justiciability is the quality of legal rules, which is considered in the terms of reasonable expectations about enforceability of these rules by judicial, and other law- application organs when adjudicating disputes. Publication of this article by Bulygin led to a discussion with Hans Kelsen who critically assessed the ideas set forth in the article. In this perspective, the article of Bulygin is an important mark in development of legal philosophy in the 20th century.
A number of puzzles surround Kelsen’s doctrine of the normativity of the law. What, exactly, does it mean? Some writers in analytical jurisprudence have attributed a “justified” or “contentual” normativity thesis to Hans Kelsen. One representative of this view, Joseph Raz, goes so far as to claim that the “justified normativity thesis” defended by Kelsen is an expression of traditional natural law theory. In the present essay it is argued that a “justified” or “contentual” normativity thesis forms no part of Kelsen’s theory, and the point is demonstrated textually. Rather, Kelsen defends a “modal” normativity thesis. Support for this thesis in Kelsen’s writings is drawn from Kelsen’s analogy between causality in the physical sciences and peripheral imputation in the law. The latter, as Kelsen argues, provides the underlying Gesetzlichkeit of the law,* and one explication of the notion, explored in the present essay, draws on a Neokantian notion, namely, Heinrich Rickert’s doctrine of methodological forms. The modal normativity thesis underscores the irreducible character of the law, but without making any claims respecting the content of the law.
The article is devoted to the issues of rule-making and interaction of the controlling bodies in the field of public financial control. The system of regulatory legal acts is approached from the public financial control perspective.
This article gives an account of the international symposium «Norms and Normative Systems in Philosophy, Law, and Informatics — 2011», the authors describe the most important aspects of the symposium and summarize the key points of the main presentations made at the symposium.
The issue of effectiveness of limitations of debtor’s personal rights is considered in the article. The low level of actual enforcement causes new attempts to introduce additional penalties and other similar measures with regard to debtor. However, the formation of such measures is not always executed in systematic manner. Such measures are required to be systemized and differentiated. Well-structured, theoretically founded and pragmatic system of execution in the enforcement procedure is to be created. As the result of analysis of legislation and legal practice, as well as of statistical data, historical and foreign experience the author makes the conclusion that, firstly, the key problem of the effectiveness of relevant measures is the problem of considering the debtor’s conscientiousness, and, secondly, that limitation of debtor’s freedom should be applied as the penalty, considering proper legal safeguards used in legal liability mechanism.