«Настоящее» и симулякр в праве в условиях кризиса авторитетных инстанций определения общей истины
The book is devoted to the causes and special aspects of modern authoritarian political regimes, which differ from their last century analogues with a pronounced imitative character. Hamstrung by democratic constitutions and international obligations, many post-socialist countries actually mimic democratic institutions and procedures, trying to hide real authoritarianism behind a beautiful democratic signboard. It turns out that the level of authoritarianism is directly proportional to the imitations level. The study also proves that the imitations level is also proportional to the levels of aggression, corruption and poverty. What are the reasons for the rise of imitative political regimes? How and by what means is their constitutional field transformed? On what grounds can they be identified in advance? The book attempts to answer these questions in the name of preventing the threat of return of authoritarianism in the post-socialist countries.
Legal system is a concept embodying the multifacetedness of law, i.e. its internal architecture (elements of law which are complex systems per se), correlations within the system, interaction of law with other parts of socium. Legal system has been the subject matter both of law and sociology of law. Each of the sciences has developed its own approaches to this phenomenon, which do not tend to cross. Each science makes its own path not addressing the achievements of the interdisciplinary discipline. Sociology of law doctrines are considered by the author as the instruments to widen the cognitive borders of the traditional for lawyers positivist approach to law, to discover topical research perspectives. On the basis of the views of T Parsons, D. Black, N. Luhmann, P. Bourdieu, the article develops the methodology of the social approach to legal system, reveals its advantages and disadvantages. Sociologists are used to shifting a significant role in functioning legal system to legal professionals. They focus on the contradictions in the relations between legal framework (legal system, normative system etc.) and politics. The views of sociologists are extrapolated to the current reality of Russian legal system. Its majour issue is seen in the imbalance between law and politics as the ruling elite imposes a beneficial for it structure of legal system on society, intervenes in legal communication including judicial enforcement of courts and law enforcement agencies. The majour attention of lawyers should be drawn to ensuring their relative independence, widening the autonomy of legal framework and legal communications, and building up their authority when adopting paramount legal acts. This is the only way to create a prerequisite to tackle the problems which the legal system of Russian society is facing. The article covers the current empirical legal approaches suggested by sociologists as well as the causes for such research, results, perspectives and possibilities to engage jurists in such studies.
It is apparent that the monistic, single-factor theory cannot explain the diverse world of law; for such explanation one should refer to broad philosophical categories that could describe social (actual), normative, and ideal aspects of reality. This category in modern theoretical jurisprudence may well be the concept of “communication”. The idea of communication in law was developed in depth in the modern German philosophy of law (Werner Krawietz, Niklas Luhmann, Helmut Schelsky and others), but it is not alien in the Russian legal discourse either. This is evidenced by the writings of Leon Petrazycki and other members of the St. Petersburg school of legal philosophy, who as early as in the early 20th century have formulated the legal problems of communication and attempted to explore it using the terms of philosophy of that time. To rely on the developments done by members of this school and to use their ideas as a semantic light tower in (re)designing the communicative philosophy of law in Russia are a necessary prerequisite of the scientific discourse and, in particular, of the work within the framework of the “St. Petersburg Dialogue” that is held amongst Russian and German legal theorists.
The paper deals with different approaches to explanation of the communicative nature of law in the French legal theory and the philosophy of law in the first half of the 20th century
In the monograph in honor of the 60th anniversary of Professor of St. Petersburg State University Dr. Andrey V. Polyakov are collected works of Russian and foreign scholars devoted to theory of legal communication elaborated by Professor Polyakov, as well as to other topical issues of legal science related to that theory. The authors (Genevra Lukovskaya, Ilya Chestnov, Edoardo Fittipaldi, Elena Timoshina, Vladimir Lazarev, Vladimir Syrykh, Nikolay Vlasenko, Igor Nevvazhay, Alexey Ovchinnikov, Vadim Pavlov, Alexey Stovba and others) of the first volume analyze theory of legal communication; the second volume includes essays on some problematic issues of legal philosophy and jurisprudence related to theory of legal communication (including the works of Mark Van Hoecke, Eugenio Bulygin, Leonid Mamut, Vladimir Baranov, Bjarne Melkevik, Csaba Varga, Norbert Rouland, Igor Gryazin, Valentina Lapaeva, Natalia Varlamova, Alexander S. Alexandrov and others).
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.