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Regular version of the site
Of all publications in the section: 75
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Working paper
Borisova T. Y. Law. LAW. Высшая школа экономики, 2012. No. 05.
The article describes and analyzes the legislative politics of revolutionary regimes in Russia in 1917-1918. The author aims to demonstrate the political meaning of the form of early Soviet legislation and its legitimizing effect. The revolutionary legislators often used specific language in the new laws as a vehicle of legitimacy, i.e. to make the people comply. The two main types of legal language used by the Bolsheviks can be interpreted from the perspective of different types of legitimacy. The revolutionary strategy used propagandistic legislation, written in the language of lay people, which urged them to act according to the new law. It can be seen as a request for acts of the people to legitimize the soviets. On the contrary, the traditional strategy employed old bureaucratic means of writing and distributing legislation to the local soviets. The language used by this strategy was closed to the understanding of a lay audience and implied traditions of obeying the law written in familiar legal language, which in turn implied rational/legal legitimacy. The second strategy had already become dominant after the first months of the Bolshevik revolution. This observation demonstrates that from the very beginning of their rule, Soviet leaders approached legislative policy from a technocratic point of view, which determined the further development of Soviet legal theory and practice.
Added: Jul 20, 2012
Working paper
Karliuk M. Law. LAW. Высшая школа экономики, 2016. No. 69.
The Eurasian Economic Union (EAEU) has its own judicial body tasked with ensuring the uniform application of EAEU law by member states and institutions. The EAEU Court has a number of important powers; however, it is noteworthy, that such crucial ones as the preliminary ruling procedure and the ability to review actions of member states upon request of the EAEU regulatory body are missing. This paper reviews the missing powers in a search for the reasons behind their removal, and the ensuing ramifications. It also uncovers other limitations of the Eurasian judiciary and its strained relationships with national judiciaries. It is argued, that the EAEU Court will struggle to fulfil its mission without solutions compensating its limited powers.
Added: Dec 13, 2016
Working paper
Tretyakov S. V. Law. LAW. Высшая школа экономики, 2015. No. WP BRP 46/LAW/2015 .
Настоящий текст посвящен критическому анализу проблемы степени "пластичности" (scalability) понятия права. В своей книге "Transnational Legality" профессор Томас Шульц выдвинул тезис, в соответствии с которым понятие права не является пластичным (non-scalar) и наличие у некоторых нормативных режимов некоторых признаков права при отсутствии других не дает возможности рассматривать их в качестве правовых. По мнению Шульца качество права есть или нет, его не может быть больше или меньше. Точка зрения Шульца подвергнута критическому анализу и сделан вывод о том, что она требует гораздо большего обоснования, чем предлагает Шульц. Основная проблема, как представляется,  состоит в том, что процесс глобализации изменил само представление о праве, а также его связях с понятиями государственного суверенитета и территории.
Added: Feb 18, 2015
Working paper
Antonov M. Law. LAW. Высшая школа экономики, 2012. No. 02.
This paper studies the background and guidelines of discussions about the concept of sovereignty and its limits. The paper begins with a short historical analysis of the processes that took place in Soviet Russia that led to the “parade of sovereignties” in the early 1990s. Afterwards, the author sketches the different approaches and doctrines upheld by the Constitutional Court of Russia in several decisions concerning sovereignty problems. The paper focuses on the vertical dimension of sovereignty, i.e. on different conceptions adopted by the federal and regional powers in postSoviet Russia regarding the legal status of the member-republics of the Russian Federation. The development of the doctrine of the Constitutional Court of Russia in this matter is quite illustrative as to the legal arguments used to protect the integrity of the Russian Federation against the diverse disintegrative strategies pursued by the regions.
Added: Aug 27, 2012
Working paper
Antonov M. Law. LAW. Высшая школа экономики, 2013. No. WP BRP 24/LAW/2013.
This paper examines the correlation between the concepts of sovereignty, human rights, and democracy in Russian legal and political debate, analyzing this correlation in the context of Russian philosophical discourse. It argues that sovereignty is often used as a powerful argument which allows the overruling of international humanitarian standards and the formal constitutional guarantees of human rights. This conflict between sovereignty and human rights also recurs in other countries, and many legal scholars demand the revision or even abandonment of the concept of sovereignty. In Russia this conflict is aggravated by some characteristic features of the traditional mentality which frequently favors statism and collective interests over individual ones, and by the state building a “power vertical” subordinating regional and other particularistic interests to the central power. These features and policies are studied in the context of the Slavophile-Westernizer philosophical divide. This divide reveals the pros and contras put forward by the Russian supporters of the isolationist (conservative) policy throughout contemporary history, and especially in the sovereignty debates in recent years. The Russian Constitution contains many declaratory statements about human rights and democracy, but their formulations are vague and have little concrete effect in court battles where the application of international humanitarian law is counterbalanced by the concerns of the protection of sovereignty. These concerns coincide with isolationist and authoritarian policies, which led in 2006 to their amalgamation into the concept of “sovereign democracy.” This concept is considered in this paper to be a recurrence of the Russian conservative tradition. Even though the concept in its literal meaning has been abandoned by its author and supporters, most of its ideas are still on the cusp of the official political discourse which reproduces the pivotal axes of the Russian political philosophy of the 19th century.
Added: Sep 18, 2013
Working paper
Varfolomeev A. A. Law. LAW. Высшая школа экономики, 2014. No. 44.
This study focuses on the dissonance between the definition of piracy in Russia’s Criminal Code (disposition of Article 227) and piracy as defined by international law (Article 101 of the UN Convention on the Law of the Sea, 1982). This can create obstacles in the appropriate qualification of piracy acts and lead to a certain discord between the two (national and international) law systems. At least four areas of possible disagreements were identified: contradictions over a place to commit an act of piracy; over the object of crime; a purpose, and over a crime’s objective aspect. The paper also investigates the potential competitions between jurisdictions, including situations in Russia’s exclusive economic zone and on board a vessel registered at a Russian port.
Added: Feb 11, 2015
Working paper
Nurullaev R. Law. LAW. Высшая школа экономики, 2015. No. WP BRP 54/LAW/2015 .
On 14 July, 2015 the Russian President signed Law No. 264-FZ which grants Russian citizens the right to request the delisting of search results which link to inaccurate or irrelevant information about them (“the right to be forgotten”). This paper discusses the decision of the Court of Justice of the EU in Google Spain v. Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, the case which inspired Law No. 264-FZ, and compares implementation of the right to be forgotten in the EU and Russia. It is found that the Russian law was created as a sui generis right, and fails to account for the right of the general public to find and access information online. Other discrepancies include a wider scope of the right to be forgotten, rigid requirements for processing removal requests and the prohibition to disclose any information about such requests.
Added: Oct 6, 2015
Working paper
Rusinova V. Law. LAW. Высшая школа экономики, 2014. No. 38.
  This paper casts doubts on the existence of a contradiction between the norms of International Humanitarian Law and International Human Rights Law in the sphere of the protection of the right to life and concludes that the wording and systematic interpretation of international treaties, and the subsequent application allowing the inference of an integrated approach to the determination of the negative and positive obligations of states in respect of the right to life.
Added: May 12, 2014
Working paper
Yakovlev A. A., Kazun A., Sitkevich D.A. Law. LAW. Высшая школа экономики, 2016. No. 70.
This paper reviews the activity of professional legal organizations as factors in the transfer from limited access order (LAO) to open access order (OAO) according to the theory of North, Wallis and Weingast. By analyzing the experience of lawyers’ collective action in developing countries, this paper proposes a decision tree explaining the process of the mobilization of the legal community to counter violations of the law by the ruling elite. It shows that this collective action plays a significant role in implementing the rule of law. However, the efficiency of such collective action in a particular country depends on the institutional capacity of its legal association and on the position of the professional elite leading it. The history of the development of Russian legal advocacy shows that exogenous shocks actually stimulate the collective action of lawyers, which in turn compels the government to respond.
Added: Nov 19, 2016
Working paper
Postnikova E. Law. LAW. Высшая школа экономики, 2013. No. 19.
The freedom to provide services is one of the four fundamental freedoms of the European Union (EU) internal market. Interstate trade in services is impeded by different obstacles consisting of the high level national regulation. The objective of this paper is to reveal the nature of prohibited restrictive national measures. The research is based on the analysis of the Treaty of Rome (now the Treaty on the functioning of the European Union), secondary EU law, the evolution of EU case-law, and a range of doctrinal views. It is argued that the definition of prohibited restrictions is the most complex aspect of the case-law on services. The research compares the concept of the restrictions that are to be abolished within the scope of the freedom to provide services and of other freedoms. This study also investigates the correlation between EU and World Trade Organization (WTO) legal mechanisms in the sphere of the provision of services.
Added: May 7, 2013
Working paper
Чувилин А. Е. Law. LAW. Высшая школа экономики, 2013. No. 28.
One of the main aims for the argumentation theorists around the world is to define standards for the soundness of argumentation. Many authors, such as Chaim Perelman or Steven Toulmin, have emphasized the role that the field of argumentation plays in defining such standards. Judicial argumentation is strongly connected with legal procedure and substantive laws. But can we say that some rules of judicial argumentation are vested in legal rules? Can we derive standards of judicial argumentation from substantive and procedural laws? This paper answers these questions on the basis of Russian and US legislation. The present treatise is aimed at outlining the main aspects of the problem and elaborating directions for future research.
Added: Dec 10, 2013
Working paper
Pochekaev R. Y. Law. LAW. Высшая школа экономики, 2017. No. WP BRP 73/LAW/2017.
Water has always been an important resource for Central Asian states and peoples. Different rulers at different times used water, and access to it, as an instrument of political and even military influence. When the Russian Empire expanded into Central Asia, seizing substantial parts of three central Asian khanates (Bukhara, Khiva and Khoqand) and established its own protectorate over these states, its also found that water was one of the most effective means to control the rulers and peoples of Central Asia. The use of water and irrigation policy as an instrument of rule was effectively used by the Russian Empire in its relations with the Central Asian khanates and this has already been the subject of investigation. This paper analyses the legal regulation of water use and the irrigation policy of the Russian Empire in Turkestan in order to influence the Bukharan Emirate and the Khivan Khanate during the epoch of the Russian protectorate (1870s–1910s). The paper demonstrates how the internal “water law” was a starting point in Russian policy towards Bukhara and Khiva, and shows that each subsequent stage was closely connected to the evolution of the “water law” in the Russian Turkestan. The sources are official documents (including legal acts) of the Russian Empire, correspondence of Russian and Central Asian statesmen, memoirs of contemporaries and the notes of Russian visitors to khanates (diplomats, engineers, etc.) who participated in the realization of Russian water policy in Bukhara and Khiva and could estimate its effectiveness.
Added: Mar 7, 2017