28-29 January 2012 in Saint-Petersburg Branch of Higher School of Economics was held an international colloquium “Law and International global Community”. The colloquium was attended by the scientists from Europe, Asia, North America, as well as by the Russian researchers from Saint-Petersburg, Moscow, Vladimir, and from other cities of Russia. The colloquium has gathered altogether more than forty participants, 26 of which have intervened with their presentations. The most of the participants were specialists in legal theory and in international law. It was a fruitful exchange of opinion, the presentations and reports gained attention of the audience. At the end of each presentation there was a rigid discussion, which helped revealing the problematic points in understanding of law between the Russian and foreign researchers. Particularly the attention of the participants was drawn by the discussions between Werner Krawietz and Bjarn Melkevik about paradigms of the scientific knowledge of law in the modern societies; between Andrey V. Polyakov, Csaba Varga and Alexey Stovba about nature of legal texts; between Lauri Malksoo, Alexander J. Sungurov, Mikhail V. Antonov and Matthew Parish about pragmatic and idealist approaches in international politics.
This article explains why a purchaser of goods, works, and services should be entitled to the value-added tax (VAT) deduction, irrespective of the financial source out of which this tax has been paid. The author concludes that deprivation of the right to deduct VAT due to an allegedly inappropriate source of payment (when the tax has been paid by an investor, rather than by a taxpayer) violates the prohibition against broad construction of tax legislation provisions containing an exhaustive list of requirements for enforcement of the right to deduct input VAT. Furthermore, such deprivation does not allow striking the balance between public and private interests in taxation, arbitrary transforms VAT from a consumption tax into an investment activity tax, thus negatively affecting the national economy. The analyzed approach supported by a number of courts totally ignores the actual will of the parties to civil law (investment) obligations and introduces an absolute presumption of transferring the capital investment object from its user to the investor. In other words, it has set a completely unreasonable rule according to which VAT is imposed not on the entity acquiring works on construction (reconstruction) of capital investment objects, but rather on the entity which finances them. This deforms one of the fundamental principles of tax law according to which taxation must be based upon genuine civil law relations, rather than on those civil law relations which are constructed artificially taking into account tax implications. The criticized position is a revival of the worst trends in the Russian taxation practice and is based on the Ruling of the Russian Constitutional Court No 169-O as of April 4, 2004 which nowadays is not applicable to the category of disputes under consideration because of changes in the current legislation and adoption by the Russian Supreme Commercial (“Arbitrazh”) Court of an alternative clarification in paragraph 9 of Plenum Resolution No. 53 as of October 12, 2006.
Any person can be subject to civil liability for negligent actions. However, risk is an inherent part of entrepreneurial activity caused by its competitive nature and fundamental uncertainty of the future. Thus, there is a contradiction: a director has to take risks, however he/she should act with caution not to be held liable. To eliminate the contradiction, the author examines traditional guilt concepts and rejects the objective approach which is based on the model of required behavior and identifies guilt with the breach of obligations. The author supports the psychological concept of guilt, according to which the understanding of guilt is based on recognition of the freedom of will, the ability of a person to be aware of his/her action and to foresee its consequences. To eliminate the collision between negligence and business risk, it is necessary to search for a solution not in the evaluation of the ability to foresee the final result (the director is aware of an abstract possibility to get a negative result), but rather in the director’s psychological attitude to the choice procedure. It means that while choosing a solution the result of which is uncertain, the director`s fault does not lie in the fact that he/she had chosen the option which later proved to be unfavourable, but in the fact that he/she had disregarded the rules of choice. To determine the innocence of the director, it is appropriate to apply a subjective-objective method.
This paper deals with analysis of the principal ideas of the book “Controversies in Natural Law from Zeno to Grotius. Two competing ideas in the history of Natural Law: law as human reason versus law as God’s command” where Dr. Anna Taitslin considers the history of natural law ideas in the Western Europe. Development of iusnaturalist conceptions can be explained through competition of two basic principles – voluntarism and intellectualism. This opposition has been formulated as early as in the Stoic philosophy and by the Early Church Fathers. In the High Middle Ages and in the Renaissance these two principles have been thoroughly elaborated by the Scholiasts. Although, in Dr. Taitslin’s opinion, one cannot find any examples of successful and consistent synthesis of voluntarism and intellectualism in the history of ideas. At the same time, this aspect of the history of political ideas is important for the contemporary philosophical discussions about human rights, as these rights are conceptually rooted into the idea of natural law which can be described through opposition of voluntarism and intellectualism.
This paper is a review of a book “Legal Epistemology and Already-Law” of the Canadian legal philosopher Bjarne Melkevik. The most important ideas of this book are analyzed in this review, as well as the philosophical standpoint from which Professor Melkevik attacks the dominant ideologies and narratives of the contemporary legal philosophy. These ideologies and narratives are concealed with some dogmatic and formal categories and schemes of the traditional jurisprudence. In Professor Melkevik’s opinion, this “perverted consciousness” of lawyers results in their inability to comprehend and explain the factual existence of law which is basically represented in human communication about how to regulate their mutual behavior and how to resolve their conflicts. Professor Melkevik is persuaded that essence of law is revealed only in concrete existential situations, in narratives of human beings, in particular contracts, acts, judicial decisions. Taken out of the framework of these existential contexts, the word “law” turns out to be merely an empty entity which refers only to abstract philosophical schemes. The author of the review opines that the book of Professor Melkevik successfully combines the ideas of the European philosophical and legal traditions with some key conceptions of the Anglo-American authors (especially, the School of Critical Legal Studies). The author of the review finds a weak point of Professor Melkevik’s book in the fact that he does not sufficiently demonstrates that “just and fair” are immanently given in jural experience of human beings. A strong point of this book is coherence and audacity of Professor Melkevik’s conclusions. If law can be described with the help of the category of communication, then abandoning abstract notions and focusing on interhuman communication looks to be consistent.
The present paper is review of a book by Canadian legal scholar Bjarne Melkevik. This book is devoted to problems of philosophy of law. The author of the review analyses the general methodological premises of Melkevik’s book, its strong and weak points, accentuating readers’ attention on the connection between the legal ideas of the Canadian thinker and the philosophical conception of Jürgen Habermas. The book under review represents a thematically organized collection of the works that several years ago had been published as three monographs apart. In the centre of Melkevik’s attention stand issues of procedural legitimation of law, of legal communication and its role in construction of interactional cooperation between human beings. The Canadian author also scrutinises public discourse as a foundation for modern legal thinking. Melkevik insists that law cannot exist outside real practice of communication. This signifies that a command or an argument that is enforced on people through coercion or authority and that is not accepted through discursive legitimation, cannot be considered to be a legal command or a legal argument. The Quebecois legal scholar explicitly challenges the conventional idea that law is something heteronomous and compulsory for human beings, something which compels them to certain behaviour against their own will. This author proposes an apology of autonomous action of subjects who take decisions about their rights through discursive legitimation - such decisions will have legal character if they are based on public democratic deliberation and on open communication. The author of the present review considers that such negation of heteronomy in legal regulation can distort how law really functions in modern societies. Such negation can also result in excessive idealization of the communicative function of law, which consequently will conceal other functions that are performed by law. Moreover, focusing only on how decisions are taken in democratic autonomous discourse disregards other aspects of legal communication and can have a negative effect for protection of individual rights.
The present paper is a review of the book “Rethinking the Law School” written by rector magnificus and president of the Leiden University Professor Carel Stolker. This book has appeared in 2014, it sets out to analyse the state of affairs in legal education and perspectives of its development. Professor Stolker justly remarks that, thus far, there have been no other research works of this scale encompassing the situation in the entire world. Similar research works have mostly been limited by the confines of national legal systems to which the authors of these works belong. Admitting that legal education tends to think locally and not globally, because legal regulation is normally linked to rules of the given legal order, the author suggests that dividing lines between countries and their legal orders are no longer obstacles for systematic research devoted to legal education in the world, insofar as the era of globalization is marked by converging of different legal systems and by unification of the legal regulation. In this connection, law schools in the world, or at least in those countries that are most intensively affected by globalization, face new challenges. These challenges should be dealt with through deep rethinking of strategies in the field of legal education. The title of the book “Rethinking the Law School” reflects this task, and the main objective of its author is to reconsider the way legal education exists in the contemporary world. In the opinion of the author of the present review’, Stolker’s book is an important source for comparative analysis of how legal education is organized in different countries.
The present article is a review of the book entitled Law, Society and Community: Socio-Legal Essays in Honour of Roger Cotterrell published in 2014. The book under review is a collection of articles written in honour of the outstanding British legal scholar, one of the leaders of the contemporary sociological jurisprudence, Roger Cotterrell. Scholars engaged both in sociological research of law and in theoretical legal thinking contributed to this Festschrift. Almost all included essays are interconnected with the themes on which Professor Cotterrell had been working during his long scientific career. These essays are divided into the following three sections: socio-legal problems, issues of legal methodology, issues of globalization and comparative law. In spite of the seemingly heterogeneous character of the matters discussed in the book under review, in fact it proposes a coherent analysis of various aspects of law in the contemporary époque for the examination of which the socio-legal methodology elaborated by Roger Cotterrell can be useful. According to the review’s author, in terms of the discussion level and the quality of included materials, this book is one of the most important publications in the field of jurisprudence published in 2014 in English. The review’s author emphasizes that all subject matters of the reviewed book inevitably imply the discussion of a place and function of law in the public life. Be it empirical essays on protest movements or abstract reflections on some key concepts of legal science, they are united by the common interest to the socio-legal methodology. This methodology varies significantly and includes both socio-philosophical deliberations in the spirit of Durkheim or Weber and such methods of applied sociology as discourse analysis, interview, included observation etc. A brief overview of the ideas articulated by the authors of the reviewed book enables to assess multidimensionality of legal sociology in the contemporary Western jurisprudence and to reveal current developments of interdisciplinary research, as well as possible combinations of the methods used in such research.
The present paper is a review of the book “Law and Communication: Established Liaisons. Reflections on the Relation between Communication and Law” which was published in 2013 by a Canadian legal scholar Guillaume Provencher. In reviewer’s opinion, this book perfectly fits the research framework of “Law as Communication” studies actually developed by Professor of Quebec University Bjarne Melkevik. This explains the fact that Professor Melkevik has written a preface to this interesting research work of Provencher stressing the multidisciplinary and multicultural character of this research. In the reviewed book Provencher reflects on the role communicative theory of law can play in the debates on the basic philosophical-legal questions — such as validity of law or legitimacy of law. Defending the broad approach to law and to legal methodology, Provencher follows the works of Ricoeur, Bourdieu and other leading French philosophers, without leaving out of his sight other thinkers who belong to other scientific traditions, foremost that of the German social and legal philosophy — Luhmann, Habermas, Tönnies et alt. The working hypothesis of Provencher’s research is that there is a connecting link between law and communication. This link implies the common and coordinated action of the spheres of law and communication. This mutual engagement of law in communication and vice versa allows supposing that legal communication can be seen not only as an abstract notion but also as a factual field of coordination of human interaction. The author of the present review analyses the weak and strong points of this communicative research of the legal field undertaken by Provencher. He points out that the reviewed book does not take account of some important research works carried out by other leading scholars who also sought to understand law as communication. At the same time, the author recognizes the high innovative potential of the research work realized by Guillaume Provencher.
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 Code by Altan Khan - the codification of Mongol law of the second half of the 16th century. The article provides a brief overview of the legal monument and its creator Altan Khan, its first Russian translation and comments on the specific features of the analyzed monument.
In the paper are studied the particular aspects of the conception of the founder of the Historical School of Law F.K. von Savigny. The author examines Savigny’s work in connection with the intellectual life in Germany in the first half of XIX century. The author stresses that the potential of Savigny’s thought is not limited by his metaphysical ideas about Volksgeist and about the historical evolution of law. The conception of this German thinker also reveals important elements of hermeneutic analysis of law, of intuitive insights into the texts of law to discover the hidden historical meanings. These ideas of Savigny are described by the author as philological turn in the German science of law.