Взаимодействие национальной и международной правовых систем. Государство и право в глобализирующемся мире
The article deals with the main forms and directions of interaction between modern Russian legislation and some institutions and provisions of islamic Shariat. The author analysis attempts of referring to Shariat in modern Russia in different forms including implementation of above mentioned norm and institutions in Russian legislation. He underlines the possibility of guite wide referring to Shariat provisions as far as the problems covered by dispositive norms of the legislation in force are concerned.
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.
Author reviews Russian legal system based on The Russian Constitution (1993) and also considers functioning of basic political institutions and others associated with them. At the same time author analyses reasons of unsatisfactory functioning of particular institutions from the point of view of the Constitution. In particular, author estimates constitutional status of Russian President and reveals his unproportional impact on other political and even civil societies institutions.