This book brings together academics and practitioners from a range of disciplines from more than twenty countries to reflect on the growing importance of transparency, power and control in our international community and how these concerns and ideas have been examined, used and interpreted in a range of national and international contexts. Contributors explore these issues from a range of overlapping concerns and perspectives, such as semiotic, sociolinguistic, psychological, philosophical, and visual in diverse socio-political, administrative, institutional, as well as legal contexts.
The collection examines the ways in which 'actors' in our society - legislators, politicians, activists, and artists - have provoked public discourses to confront these issues.
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.
This collector contains international conference papers on legal theories. Papaers are related to a problem of symbolic and attributive entity of law. This problem is tried to solve in perspectives of legal phylosophy, history, techniques as well as in perspective of different branches of law.
Collected papers may be of law researchers, teachers, postgraduates and students interest.
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.