Компенсаторная функция правового мифа на примере мифа эффективности закона
The paper is related to analysis of compensatory function of legal myths using example of legal efficiency and legal effectiveness myths.
The report addresses the methodological challenge of studying judicial reasoning in a Codified Systems of such Western countries as France and Germany in the 19th century and Russia in the late 19th early 20th century. The difference in style of Western European and Russian decision should be explained by taking into account national legal consciousness along with black letter rules of the codes and statutes.
The chapter examines the academic dispute in newspapers between two legal scholars on details of the judicial reform in Russia in terms of rhetoric.
In my paper I will analyze decisions of the Russian Constitutional Court and courts of general jurisdiction, in which they interpret ordinary and seemingly unambiguous words and phrases. In a number of cases this interpretation is made in a manner, which is suspect from a linguistic point of view. The analysis shows that there is no consistency in the application by Russian courts of the ‘‘plain language’’ rule and that literal interpretation may be used selectively as a means of legitimizing the decisions made on non-linguistic grounds. Though literal interpretation can be often incompatible with the concept of justice and therefore judges should also take into account other criteria, there are examples of court decisions, in which literal interpretation would have been more appropriate from the perspective of justice, separation of powers and human rights. The article shows how use and misuse of language by judges is employed as a tool in judicial decision-making.
The book comprises the articles about legal methodology and new developments in understanding of law and its tools of art.
The book presents the results of the study of the problem of correctness of justification and effectiveness of beliefs in the legal and moral arguments relating to the field of practical reasoning about actions. The problem of justification and belief in law and morality affects the modeling, evaluation, substantive content and linguistic-speech design of processes and procedures of argumentation specific to law and morality and reflect the current state of research in the field of analysis of argumentation and rational behavior. The set of solutions to this problem covers four aspects: substantive, procedural-legal, procedural and cognitive, and consists in the construction of integrative models of argumentation, summarizing the results of the theory of argumentation, law, ethics, logical and pragmatic theories, artificial intelligence and cognitive science. The proposed solutions to the problem of justification and belief in law and morality are designed to demonstrate how rational agents – participants in legal disputes and moral discussions carry out argumentation in practice, what are the criteria for its evaluation, what is the heuristic and practical value of formal methods of its modeling, what role cognitive science and artificial intelligence play in it. The research results will find application in the development of social e-services (e-democracy, e-justice, etc.), social Informatics will contribute to increasing the availability of legal services, the development of civil society, especially the social responsibility of people and institutions, the consolidation of traditional East European societies moral values, can be used for scientific research and education. The book discusses the logical foundations, formal models, cognitive mechanisms, pragmatic aspects, as well as the history of the formation of practical arguments in the field of law and morality, presents an analysis of real cases, including resonance (Breivik case, Markin case). The monograph is addressed to philosophers, lawyers, practicing lawyers, specialists in the field of artificial intelligence, management and management, as well as a wide range of interested readers who want to get acquainted with the features of the structure of reasoning and evaluation of arguments in the field of law and morality, the behavior of rational agents in the conditions of norms, the history of the formation of rules and the tradition of moral and legal reasoning. No special knowledge is required to read the book.