This paper is devoted to an analysis of a book written by the Finnish, Dutch and Belgian legal scholars on the issue of objectivity of law. The main objective of this book is to investigate whether there are any firm criteria in the legal theory, any indisputable truths in the legal dogmatic, any preconditions of predictable and stable law-enforcement practice. Legal theorists consider their discipline as an objective endeavor in line with other fields of science. Objectivity in science is generally regarded as a fundamental condition, informing how science should be practiced and how truth can be found. Objective scientists venture to uncover empirical truths about the world and ought to eliminate personal biases, prior commitments and emotional involvement. However, legal theorists are inevitably bound up with a given legal culture. Consequently, their scholarly work derives at least in part from this environment and their subtle interaction with it. The analyzed book questions critically, in novel ways and from various perspectives, the possibilities of objectivity of legal theory in the twenty-first century. It transpires that legal theory is unavoidably confronted with varying conceptions of law, underlying ideologies, approaches to legal method, argumentation and discourse, which limit the possibilities of ‘objectivity’ in law and legal reasoning. The reviewed book reveals some of these underlying notions and discusses their consequences for legal theory. In the author’s opinion, this book is an important contribution to the debates about objectivity of law both in the world of legal science and in the Russian jurisprudence.
In this article the author questions the role of Eugen Ehrlich’s sociological jurisprudence in contemporary debates about legal pluralism. In author’s opinion, the modern legal pluralism is too much concentrated on opposing state law to social law. This dualist understanding of law was not characteristic for Ehrlich who defended the thesis about unity of law. Law in society always displays its integrity, even if composed of many inner social orders. Nevertheless, law can be conceptually divided into two logical units: official (state and juristic) law and living (social) law. Neither was Ehrlich inclined to advocate for mechanical transformation of facticity into normativity – for this effect creative work of lawyers is needed. From this point of view, it is not possible to use Ehrlich’s socio-legal theory for justification of the project of anthropological jurisprudence to construct the term of law as inclusive of all the normative systems of social regulation. Listing Ehrlich as one of the founding fathers of legal pluralism is not undisputable, because legal pluralism itself is not a unified scientific doctrine, and many assertions of legal pluralists contradict to Ehrlich’s position. Ehrlich by far was not biased to attribute inferior positions to law and judiciary in the legal reality, which sometimes is typical of some legal pluralists.
The author of this article restarts the polemics around the realist theory of interpretation. Examining the thesis of this theory about identity of legal interpretation and jurisdictional decision-making, the author proves that confusion between these two different phenomena is based on incorrect use of the term “interpretation”. In the article are discussed six meanings of this term, at least present in legal interpretation, and each meaning must be used in the appropriate context. Undue confusion between these meanings enables the partisans of the realist theory of interpretation to construct “interpretation” as a notion without clear conceptual limits. This argument is designated by the author as an onomastic sophism, as a rhetoric stratagem based on the idea that a term has the same meaning in different contexts. The author repudiates the thesis forwarded by the realists that it is impossible to cognize meaning of legal texts, and draws on the incoherence of this argumentation which lastly recognizes a possibility to attribute a meaning through a judicial decision. In general, as O. Pfersmann argues, the realist theory of interpretation intends to justify changes in constitution through judicial argumentation without considering the order prescribed by the constitution for changes and amendments.
In this article are discussed the limits of application of general theory of systems in legal science. The author criticizes utilization of the notion «systemacity» for description of how legal norms are organized and how legal phenomena are structured. In author’s opinion, the term «system» is charged with a multiplicity of meanings, so that in social sciences this term is sometimes applied for characterization of the fundamentally different phenomena and realities. That is why legal scientists shall be especially careful in using this term. In the Russian jurisprudence the term «system» is applied for both «social reality of law» and for a set of the norms belonging to the positive law of the country. This use is tautological and has no conceptual justification. The author proposes to use the term «legal order» only for description of a structured set of legal rules, reserving the use of «system» for characterization of law from the point of view of comparative jurisprudence, legal sociology and other sciences which examine the relations between the law and other sectors of social reality. Argumentation in favor of «systemacity» of law is theoretically based on philosophy of objectivism. It results in vain illusions about a capacity of norms to produce themselves a legal order which emerges automatically insomuch as law is a functional entity. But this «systemacity» is not given in (the) law a priori. Logical coherence and consistence of norms always remain relative, being the outcome of the purposeful activity of lawmakers, judges, legal scholars. It is naïve to suppose that rules can enter into the law and find their adequate position there without human intervention. Such understanding can lead to apology of irresponsibility of those who create redundant and inconsistent norms in the false hope that these norms will anyways find their place in the law grace to «systemacity» of this latter.
The paper critically examines three projects which are proposed as an alternative of the transforming nation-state. Transnational states of U. Beck, cosmopolitan democracy of D. Held and post-national constellation of J. Habermas. Transnational states, according to U. Beck, are powerful states, whose political power grows out of the cooperative responses to the globalization. Nation-states are united under transnational state in response to the globalization and their regional sovereignty are developing outside their borders. At the center of the cosmopolitan project of D. Held is an individual. Between individuals, intergovernmental organizations and non-governmental organizations should be direct relationship. J. Habermas puts a structure of multilevel system, which would defend human rights at supranational level (within the appropriately reformed UN), and would solve the problems of world domestic policy with the help of a compromise between the interests of world powers — at the transnational level (through ongoing conferences and negotiation processes).
It seems, nevertheless, that the basis for these projects contains an insoluble conflict between the normative commitment to democracy and effective national desire of democracy beyond the state. They also have a potential to repay an effective self-governance at the local and national levels. It seems, that we need not democratic and global, but powerful and effective organizations which could challenge vested interests of global capital, promoting the general welfare — social democracy — at the global level.
The article presents a reconstruction of evolution of Carl Schmitt’s (1888–1985) legal ideas which influenced the theory of state and legal philosophy. The author of the article reflects on the main Schmitt’s writings, their influence on legal positivism, their connection with the institutional theory of Maurice Hauriou, analyzes Kelsen’s critical review of Schmitt’s views, interrelations between the ideas of Schmitt and the views of the Russian scholars Nickolas Alexeyev and Mstislav Shakhmatov.
The author of the article underlines that Neo-Kantian views affected the early Schmitt’s writings. However, the scholar opposed his views to the Neo-Kantian normativism of Kelsen. Defining the problem of correlation between the concepts of “norm” and “decision”, C. Schmitt has established the bases of the Decisionism doctrine within which the “decision” has become the main foundation of legal order, rather than the “norm”. The notions of sovereignty and constitution elaborated by the scientist have become examples of the Decisionism doctrine.
During 1930s Schmitt tried to combine Decisionism with the doctrine of “specific legal orders”. He underlined the “normal” concepts of the legal order, rather than the exception which provokes the “Decision”.
During 1940–1960s Schmitt’s vision led him to the opposition between the orders of “Land” and “Sea”. Schmitt challenged the universal character of international law and tried to pose new academic questions within the international humanitarian law.
Leon Petrażycki’s work from the early decades of the twentieth century holds a strikingly paradoxical position in the literature of juristic and socio-legal scholarship. Indeed, the polarisation between available indicators of its status – on the one hand, lauded as a supremely valuable contribution to knowledge and, on the other, widely neglected and little known – may be the most extreme in modern legal theory.
It is true that ‘past and ever new generations of scholars have been drawn to his heritage. Almost all who have devoted serious study to his writings, – and there have been very many throughout the century since they were produced – hold them in high respect. He was called ‘possibly the greatest scholar of law in the twentieth century’ by one of his leading followers at that century’s mid-point. His work ‘unexcelled, even hardly rivalled, by any other theory of law and ethics’ in that era. Reading Petrażycki carefully today, it is hard not to be dazzled by the ambition, imagination and perceptiveness of his thinking and its rigour over an unusually vast intellectual terrain.
He offers not only a systematic and intricate legal theory, utterly different from those that now dominate juristic thought, but also an original system of psychology to underpin it. In addition he provides a blueprint for a new policy science to direct legislation far beyond its usual pragmatic objectives. In doing this he also looks back to identify long-term, scientifically-explicable, historical tendencies of legal development and he looks forward with a morally rich vision of what a truly civilised society of the future might be. He provides many subtle, psychologically-informed insights into the relations of law and morality. And he clearly foreshadows contemporary concerns with legal pluralism, developing one of the most elaborate discussions of this phenomenon in the literature of legal thought. Finally, his distinctive ideas on the nature of social science, developed mainly in unpublished manuscripts and in his teaching, have been publicised by his followers.
Yet this vast intellectual project has not attracted the scale of international interest one might expect. Petrażycki’s contribution to the study of law and society has justifiably been called ‘unrecognised’ and in international debates in socio-legal studies (systematic, empirically-oriented studies of law as a social phenomenon) his name is hardly mentioned. His theories are entirely unknown to most jurists and socio-legal scholars in the English-speaking world. He surely belongs to the intellectual cultures of the main countries where he pursued his career – Russia (in St Petersburg between 1898 and 1917) and subsequently Poland (in Warsaw until his death in 1931). But he does not yet belong to the intellectual cultures of the Anglophone countries where socio-legal inquiries have notably flourished in the past half century.
It has been suggested that ‘literature about Petrażycki is scarce but this is a strange comment. It is true that much of his writing is available only in Russian or Polish, so scholars not having access to these languages cannot hope to evaluate his work in any comprehensive way. But they can hardly be excused for remaining ignorant of his main ideas. Even though the only work by Petrażycki easily available in English is Hugh Babb’s translati (published in 1955) of approximately one fifth of his two primary Russian works, Russian and Polish scholars have written extensively in English and other languages explaining Petrazycki’ s ideas. Nevertheless, the literature of commentary is very scattered. Often it devotes much space to re-iterating the central elements of Petrażycki’s thought. This ceaseless repetition seems necessary because, even after much effort over many decades up to the present day, the ideas are still not internationally established.
This paper asks how far Petrażycki’s theories, as expressed in writings by and about him available to an international readership, might provide insight for contemporary socio-legal studies – not as historical background but as living ideas. What aspects of his work can speak to major current issues and inform current debates? What obstacles stand in the way of this? In trying to answer these questions it is also necessary to ask why most international scholars have been deterred from engaging with his theoretical legacy. The paper starts from this last issue before addressing the others.
The article discusses the political and legal views of Alexey Borovoy, a prominent Russian anarchist theoretician of the early 20th century. His philosophy, which represents an original system of views on social structure, is discussed in the context of the accepted classifications of the anarchist movements taking into account the historical and cultural development. The author describes the preconditions and genesis of Borovoy’s unique philosophy which demonstrates that his position, despite its closeness to the individualist anarchism, cannot be confined to a single scientific category. In his analysis of Borovoy’s views, the author gives a detailed review of Borovoy’s self-criticism of anarchism, mainly based on the opposition of prevailing contemporary anti-state theories. Borovoy applied this critical approach to representatives of the European and American individualist anarchism, in reconsidering Bakunin’s “seditious” theory and in his sceptical analysis of Kropotkin’s doctrine. Apart from the ideologies, the scientist hotly criticized the “state structure” and institutional political forms. Accordingly, the article focuses on the issue of parliamentary system as an institution which, according to Borovoy, instead of being a venue for competition of national or public interests, is limited to rival ambitions of few most active population groups. The article also considers the role and essence of the law within the system of Borovoy’s views. The author gives a detailed analysis of the anarchist theory developed by Borovoy, the evolution of his views and their connection with the key events and philosophic movements in the late 19th and early 20th centuries. The resulting conclusion is that Borovoy’s philosophy remains highly relevant and his theories on the state and the law are of great scientific importance. The anarchist theoretician has made a notable contribution to the legacy of political and legal thought.
The work is devoted to the study and solution of the problem of the concept of "coercion" when terminating an employment contract. Currently, neither the legislation nor the court practice know what exactly is meant by "compulsion" when the employee makes a decision to terminate the employment contract with the employer. The work consistently proves that the approaches used to this phenomenon are not universal and do not offer recipes for the analysis and resolution of all possible situations. The author found that when ascertaining whether there was coercion to dismissal or not, it is not a matter of "violence against the will", but of creating a special situation of choice. This means that the wrong one is "wrong" to the "forced" deal, and one in which one of the counterparties artificially created a situation in which the other party to the transaction should choose between known losing strategies and return to the point before the appearance of this choice, he can not . The paper proposes 4 formal-logical models for determining whether the proposed choice is knowingly losing or not with a formally legitimate threat (that is, when the realization of a threat is not an act that is prohibited by law). It also offers an exhaustive explanation of why the victim, under a formally wrongful threat, always chooses between knowingly losing strategies. The developed models are applied by the author to 8 hypothetical situations of compulsion to dismissal to illustrate their practical applicability. Also, the work considers possible exceptions from the scope of the proposed models.
The main concern of the article is to examine the legal basis to unify the major financial and legal institutions of the union customs law as stated in Customs Code of the EurAsEC, namely its basic norms regulating the procedure of calculating of customs duties and taxes within the customs union of Russia, the Republic of Belarus and Kazakhstan.
Based on the works by M. N. Katkov, L. A. Tikhomirov, P. E. Kazansky, the representatives of the conservative political and legal thought in Russia at the turn of the XX century, the article provides a comprehensive overview of their ideas on personal freedom and the role of the state in its realization, balance between rights and duties regarded as elements of legal status of a person. The article challenges a common stereotype about conservative thinkers ignoring the concept of personal freedom. On the contrary, the author argues that the problem of personal freedom was regarded in relation with adjustment of the principles of the absolute supremacy with the tendencies of modernization. The liberal ideas on incompatibility of personal freedom with the state were opposed by the conservative thesis on non-antagonism of personal freedom to monarchy which is regarded as a safeguard of modernization. Still the conservative ideas on universal freedom leading to personal oppression proved to be fatidic.
This article analyzes the proceedings of the XXVI World Congress of philosophy of law and social philosophy “Human Rights, Democracy, Rule of Law and Contemporary Social Challenges in Complex Societies”. In author’s opinion, this topic is important as far as the developing countries now experience more acute problems and this necessitates for these countries to coordinate their economical improvement with protection of human rights. At the same time, the Western countries are faced with the challenge to find an appropriate reply to the criticism toward the model which was imposed by these countries to the rest of the world. The authors focus their attention on the plenary presentations made by the participants of the Congress who from different angles examined the problem of reciprocal dependence of human rights, democracy, liberal social order, and economical and cultural development. The plenary speakers drew the attention of the auditorium to such problems as interaction of the state law of the South African Republic and of the customary law acting in this country, legal guarantees against intrusion into the process of thinking, connection between jural regulation, human emotions, human reason, interdependence between legality of state order and security of democracy, balancing of judicial and political guarantees of rights, an individual human right to democracy, and some other urging and actual issues of the contemporary jurisprudence.
In this article the authors examine some theoretical problems connected with communication in law. The authors address not only the problems of legal communication as of a communication between legal actors, but also to the communication understood as an exchange of ideas about law. In this last sense legal communication is based on reflections about social conditions and processes. The conclusions made by the authors concern such aspects as the law of the global community, the laws of regional societies, and the correlation between legal and scientific communication. The main thesis developed and defended in this article means that certain patters of behavior which were institutionalized by law and which give reasons for both free and coerced actions are also capable of structuring law and of maintaining its validity. The theory of legal communication developed in the framework of the theory of norms and actions allows for a careful examination of all the normative and factual structures and processes through which law is created. The social mechanism of realization of these structures and processes can also be explained in this perspective. The authors explain these ideas taking as examples certain conceptions of such legal scholars as Rene Koenig or Rudolf von Ihering.
The concept of legal structure is important for the commucative legal theories, because it helps to find out basic elements in Law, which cannot be reformed intentionally by governmental activity. The paper focuses on the model of legal structure in the writings of Russian legal scholar Nicholas Alexeyev (1879–1964), which affected the communicative theory of Andrei Polyakov. The article analyses structural method in the Eurasianist writings, “legal structure” in the legacy of Alexeyev and the development of this concept in the context of Russian Eurasianism during 1920s and 1930s. The transpositive “legal structure” reveals new sides in prism of views on the Eurasia’s uniqueness.
Alexeyev, who turned to the Eurasianism in 1926th is not Eurasianist sensu stricto. However, the “spaceness” of this “structure” is similar to Eurasinist views on Russia-Eurasia as a specific place. Eurasianists also favoured Alexeyev’s rejection of reduction of Law to other basis. They denied the attempts to reduce Eurasia to Europe or Asia; Alexeyev did the similar things according to Law; he refused the reduction of Law to “sovereign’s command”, “form of freedom” or “social experience”. These similarities could be explained by the closeness between Eurasianist protostructuralism and phenomenological method of Alexeyev. This closeness influenced the development of Alexeyev’s legal views in frames of the Eurasian movement.
Many different kinds of professionals work with law, but often they seek to use law for particular governmental or private purposes. Otherwise they focus on some specific areas or aspects of its creation, interpretation or application; or they study it for its interest judged by criteria that are given by fields of scholarly practice outside it. Is there a special significance for a role exclusively concerned with analysing, protecting and enhancing the general well-being or worth of law as a practical idea? This paper argues that such a role is important. Comparing Gustav Radbruch’s and Ronald Dworkin’s approaches to law, it asks how this role can be specified and how a professional responsibility for discharging it may be envisaged. Many professionals concerned with law adopt such a role incidentally or intermittently, but it needs more prominence and clear demarcation. The paper suggests that it can be seen as the specialised role of the jurist, treated as a particular kind of legal professional. The term ‘jurist’ would then have not just an honorific connotation. It would indicate a Weberian ‘pure’ type that may approximate some current understandings of juristic practice. But it would also identify a normative ideal – something intrinsically valuable. Seen in this way the jurist is one who assumes a certain unique responsibility for law.
The author of the article critically evaluates the methodology of the modern
economic analysis of law and concludes that the latter is based entirely on the
theory of institutionalism, disregarding other areas of the economic science. The
article proposes to use a fundamentally new scientific method of differentiation
while studying economic and legal phenomena. This method involves revealing
of the proper economic essence of the phenomena, different from their legal
essence. Thus, e.g. economic ownership relations cannot be regarded as identical to
ownership right, and investment relations cannot be evaluated in terms of applicable
investment legislation. All social relations should be divided into natural and artificial
ones. The former are being formed randomly, while the latter — objectively, subject
to natural market requirements. The legal relations as artificial ones are of derivative
character. In order to enable their participants to achieve more efficiency, it is
necessary to ensure the maximum correspondence of the content of legal norms to
economic principles. The most important property of the economic relations is that
they are free from external, primarily public, influence. The legal relations differ from
the economic ones in that they always offer only some part of economic freedom.
This important contradiction between a natural character of the market and its
artificial legal form requires from the legislator the knowledge of the economic free
market theory, so that its laws and regulations would not contradict the economic
logic and would ensure the maximum economic freedom.
KEYWORDS: natural economic relations, artificial legal relations, economic theory,
economic analysis of law, legal doctrine, efficiency of law, method of differentiation,
free market theory, absolute economic freedom.