Некоторые размышления о "междисциплинарности" правоведения
This article aims to identify some factors of legal regulation that put limits on the use of centralized methods in law and, in a broader sense, in social governance, primarily factors that inevitably produce legal indeterminacy and make a law-applying entity act at its discretion.
The article is based on a hypothesis that putting a safety hedge around the deductive model of law application with the unawareness of legal indeterminacy and the need for discretionary action on the part of a law-applying entity results in this subject being ousted from the theory of legal reasoning and legal theory in general, primarily in Russian legal discourse.
This has direct practical effects as it hides the availability for a law-applying entity of more than one option for a decision on a specific case and consequently relieves it of the need to publicly explain the motives for its choice. For this reason, any attempt to sustain the illusion that a specific decision in the application of law is deductible from law will have the opposite effect, namely enlargement of discretionary powers, inconsistent and arbitrary judicial and administrative practices, and a less significant role of social governance mechanisms that are based on general rules.
Consequently, any attempt to give a paramount role to centralized regulatory methods in government will have internal limitations that stem from such intrinsic indeterminacy.
The article also purports to systematize arguments underlying the thesis of inevitable indeterminacy and partial autonomy of a law-applying entity in taking decisions regardless of what a law stipulates.
The article analyzes factors such as the linguistic indeterminacy of stipulation, the deliberate ambiguity of a specific law (e.g. the use of “bendable” rules or legal standards and value judgments), the incompletion or contradictoriness of a law, the discretionary selection of significant facts and discretionary qualifications of specific cases, legal dysfunction, contradiction between the objectives of a law and the results of its application, inevitable exceptions to rules, and indeterminate principles for the interpretation of law and for filling legal gaps.
The reasons for the use of administrative discretion include more extensive state regulation, wider use of redistribution, changes in the nature of tasks to be addressed in public administration and higher standards for their implementation, more sophisticated decision-making technology, the need for law-applying entities to have better knowledge in various specialist fields and a more prominent role of specialists, limited resources, and the incrementalist style of decision-making.
Reconstruction of the 11th century Rusian chronicles is a classic problem of russian history soucre studies. It can't be solved with traditional methods of source analysis such as manuscript comparison, palaeographic or codicological studies as no chronicle manuscripts of 11th century remain nowadays. There are some alternative approaches proposed in special literature, eg. analysis of contradictions in chronicle texts and chronological systems analysis, but these also aren't effective enough. However, lexicological and stylistic studies of the chronicle text allow us to make some non-trivial conclusions. Apparently our knowledge of Primary Chronicle textual history may be extended only if we use the interdisciplinary approach combining methods of history with methods of philology and liguistics.
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 paper is related to analysis of compensatory function of legal myths using example of legal efficiency and legal effectiveness myths.
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 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.