|Guseynov A.A., Stepin V.S., Smirnov A.V., Chizhkov S.L., Rozin V.M., Tukhvatulina L.A., Bondar N.S., Hajiyev G.A., Grafsky V.G., Lapaeva V.V., Bochkarev S.A., Kerimov A.J., Barenboim P.D., Zakharov A.V., Voynikanis E.A., Kravchenko D.V. Ways of Development of the Philosophy of Law in Russia: Round Table of the Interdisciplinary Center Philosophy of Law of the Institute of Philosophy RAS December 7, 2016 Moscow||103|
|Popov E.A. Philosophy of Law and Sociology of Law in the Context of Interdisciplinary Interaction
The article reveals the peculiarities of interaction of philosophy of law and sociology of law in research of legal reality. The emphasis is on the methodological specifics of the development of modern jurisprudence, which can significantly increase the novelty of the results of specific studies. Specified complexity and contradictions that arise among scientists in the process of obtaining new knowledge.
|Popova A.V., Abramova M.G. The Character of the Nature and Ontology of Man: on the Question of New Subjects of Law
The problem concerning Man’s place and his role in Nature is acquiring evermore importance in the present-day world. The anthropocentric approach which is characteristic of the Western model of human life in the world has led us into a blind alley. The authors of this paper conduct a philosophical-and-legal analysis of the problem concerning human life in the world, the problem concerning life of society, the problem of Man’s perception of life, as well as the life of Nature. The given article offers an analysis of certain novelties in the legislation of several countries (Bolivia, Ecuador, Germany and others) that have conferred upon Nature and animals the legal right of a subject of law; moreover, the given article insists upon the inter-dependence of rights and duties of Nature and Man, and it also raises the question of a state-sponsored ecology policy. The authors arrive at the conclusion that only such an approach by mankind to the problem of regulating the legal relationships among the entities of the noosphere, and to the elaboration of a full picture of a world outlook that includes Nature, society and Man.
|Ovchinnikov A.I. The Main Directions, Tasks and Objectives of the Philosophy of Law: History and Modernity
The article discusses some of the stages of development of philosophy of law, its main directions, objectives, place and role in legal education. The author formulates basic problems of philosophy of law, given the current state of the legal science concludes about the need to develop its own, distinctive legal philosophical thought, taking into account the peculiarities of national legal culture, legal consciousness in Russia.
|Chestnov I.L. Practical Turn in Contemporary Philosophy of Law
Contemporary philosophy and philosophy of law are in crisis. It is associated with the detachment of philosophy and of philosophy of law from practical issues of jurisprudence. The practical turn in philosophy of law is intended to overcome this crisis. It forms a new model of legal reality: the right is constructed by people; it is fixed in a sign form, and is reproduced by the practices of wide segments of the population; the right relative and contextual. The right is the interaction of people as bearers of legal status in the context of specific life situations, mediated by the rule of law. In such interaction, people are guided by personal motives, satisfy the related requirements, correlating them with the legal expectations — expectations of appropriate behavior on the part of the contractor’s engagement and the requirements of the law.
|Zahartsev S.I., Salnikov V.P. The Comprehend Approach Is Offered to Understand the Law
In the article we analyzed different theories of law understanding, different approaches to law insight. As a result of this analysis, authors come to the conclusion that every theory distinguish the law from one side, however they don’t evaluate the law in a complex way as a complicated and contradictory social event. Based on the stated, authors offer and formulate new theory of law understanding, which we named as «comprehensive» (universal, all-purpose) theory.
|Gavrilova Yu.A. An Integrative Concept of Law: Philosophical and Legal Dualism to the Synthesis in Semantic Theory
The article is devoted to semantic integrative concept of law as the attempt to overcome the extremes of philosophical and le- gal dualism and holistic organic synthesis of the two approaches. The first of these comes from the development of the law on a private basis by the inclusion of philosophical categories in the context of the legal knowledge (the model of «philosophy of law»). Second, by contrast, is philosophical extrapolation methods, principles and categories in the sphere of legal knowledge resulting in legal theory to be a component of a general philosophical theory of right (the model of «legal philosophy»). Analyzed other alternatives in relation to semantic, integrative theory claiming to be universal definitions of the «just» right: integrated (synthesized) jurisprudence, legal encyclopedias, postclassical, comprehend. It is concluded that each of them has a right to exist, with the proviso that the central support of the concepts on which it is based and the justification of the widest borders of its applicability.
|Aznagulova G.M. Transcendental Interest Metaphysics in Immanuel Kant’s Teaching
The paper discusses the evolution of the «interest» notion in Immanuel Kant’s teaching. The author lays a special emphasis on the thinker’s ideas on morality and the interconnection of interest and will. The «interest» is of a biosocial and neuropsychological nature. In its contents perspective it is characterized by moral-psychological, aesthetic, biological, spiritual, political, economic, legal and other aspects. However, in Kant’s dualistic teaching that tends mostly to idealism the notion of «interest» is derivative from the person’s will and motive. It is stated that the invaluable advantage of Kant’s teaching is that it puts forward principle obstacles — a kind of rules of selection for the potentially possible actions — for reaching the personal benefit, that is, a morality principle, which is confined by him to the idea of freedom.
|Ponomaryova I.P. Dialectics in the Public Right
The article is devoted to the interpretation of the concept «dialectics» as well as its methodological representation in public (constitution) right.
|HISTORY OF PHILOSOPHY OF LAW|
|Katsapova I.A. The Relation Between Historical and Contemporary Aspects of Society in the Globalization Process
In the article the problems of present stage of globalization are discusses. Globalization affects the socio-historical forms of development of societies and states. The current socio-political crisis has created the problem of a sharp aggravation of international relations and the problem of radical renewal of the social and cultural meanings. The process of countries and peoples’ integration is discussed, and the problem of intercultural integration is focused. Also the theme of pluralism of doctrines of law and the pluralism of legal systems is discussed. The impact of global economy on the processes of change in the traditional states and jurisdictions is revealed. The nature of globalization — the ratio of its functional and institutional sides is described.
|Ryumin S.G. The Reforms of Alexander II and Ivan Ilyin’s Philosophy
The article deals with the influence of ethical and legal aspects of the reforms of Alexander II on I.A. Ilyin’s work. The article shows the historical significance of the reforms of Alexander II. The role of the Judicial Reform of 1864 is analyzed. It favoured not only legal changes but also the changes in customs, manners, social morality, it also helped to increase legal literacy and the growth of the sense of justice. The article shows the connection between the Judicial Reform of 1864 and the problem of the sense of justice. The significance of the concept of the sense of justice in I.A. Ilyin’s work is revealed. The philosopher’s sense of justice is an ontological category, a basis for the world order, harmony and culture. The sense of justice in the works of I.A. Ilyin is not seen as mere knowledge of the law, but as a legal sense of a person, as a basis for the state and the law. The philosopher considers the sense of justice particularly important in the development of the society and the historical process. He emphasizes that the laws cannot exist outside the living sense of justice and makes a conclusion about the necessity of the struggle for the strengthening of the sense of justice. The necessity of education and the development of the civil sense of justice is shown. The topical problem of today is the study of the experience of the Judicial reform of 1864 because it is useful for the fundamental reform of the judicial system and the building of the state of law in Russia today.
|THE PHILOSOPHY OF ADMINISTRATIVE LAW|
|Yusupov V.A., Bratanovsky S.N. Administrative Law is as Being
In the scientific article through philosophical category «being» separate elements of the sector of the administrative law are researched. On the basis of the dialectic analysis of categories of «being» and «non-existence» in relation to the administrative law judgment about expresses that, along with the cash administrative law, already absent, cancelled, died off administrative law presents in reality anyway. The conclusion that one of the most important elements of substance of the administrative law is objective organizational requirement is drawn. The place of the sector of the administrative law in the Russian national law system is determined.
|PHILOSOPHICAL BASES OF CRIMINAL LAW, CRIMINAL PROCESS AND PROSECUTION ACTIVITY|
|Bochkarev S.A. The Philosophy of Criminal Law in the History of European and Anglo-American Schools
The article is a historiographic review of the main phenomena, processes and views reflecting the origin, formation and development of the philosophy of criminal law in European and Anglo-American traditions. The material summarized in this article demonstrates the main milestones in the history of these schools and does not pretend to an exhaustive review of branch literature. At the same time, it can be useful to Russian philosophy and the science of law, since it gives them the opportunity to supplement or form ideas about the world of the philosophy of criminal law and to assess the position of the same branch of knowledge in domestic science.
|Vinokurov A.Yu. Philosophical Approaches to the Science of Prosecutorial Activities
The subject of research is the search for the philosophical foundations of the science of the Prosecutor’s activities in its historical aspect and modern condition. The author examines the Genesis of the Prosecutor’s science through the prism of the basic philosophical categories and concepts, illustrating his thesis by references to the work of individual scientists. Scientific novelty lies in the attempt to define a philosophical approaching to the understanding of the essence of the science of prosecutorial activities.
|Tymoshenko A.A. Legal Uncertainty of the Principle of Fairness in Criminal Proceedings
The author has consistently analyzed the legal certainty used in legal science, legal uncertainty, the principle of justice. Attention was also paid to the right to judicial protection, the right to a fair trial, recognized in the Constitution of the Russian Federation, as well as the European Convention on the Protection of Human Rights and Fundamental Freedoms. After this, taking into account the above law-enforcement practice, it was concluded that it is impossible to achieve a legal procedure that meets all legal certainty, and any other legislative act. Given the large worldview stress on the category of fair, significant experience of its philosophical interpretation, it is concluded that it is advisable also in the organization of proper law enforcement practice of using this derived potential of the principle of justice. It is proposed to develop the powers of the Constitutional Court of the Russian Federation to form legal positions that establish the specific features of the operation of the principle of justice in criminal proceedings.
|Kasatkin S.N. Judicial Decision in Controversial Cases: a Methodology of Explanation of Indeterminacy in H. Hart’s Analytical Jurisprudence
In light of problems of doctrinal justification of law-enforcement activity this article discusses a project of analytical jurisprudence by a British philosopher, Herbert Hart (based on his 1950s essays), its potential and limitations in explaining indeterminacy of legal concepts, norms and decisions. The article offers a reconstruction and an assessment of the author’s approach that includes a general theory of indeterminacy in law, a methodology of explanation of indeterminacies of the legal concepts, and also a philosophical account of specific legal concepts, of their application in borderline circumstances. The conclusion is grounded according to which even if insufficient for doctrinal justification of decisions under unclear rules, Hart’s project has a unique methodological resources and preserves viability, including that as a significant philosophical explanation of legal indeterminacy and judicial reasoning in controversial cases.
|Pechegin D.A. The Adversarial Core of the Criminal Procedure
The article is devoted to the problem of ensuring the effectiveness of the International criminal court proceedings and actions in the investigation of certain war crimes, crimes against humanity. Discussion about the understanding of the adversarial nature of criminal proceedings and measures of its enforcement in the doctrine of the criminal process continues. However, consensus regarding the characteristics and elements of an adversarial core in the doctrine is not reached yet. The article is devoted to the problem of understanding the adversarial core of criminal proceedings in the countries of Romano-Germanic legal tradition. The article gives a historical and practical explanation, that the elements of adversarial core of the criminal process are the separation of functions, the equality of the parties and independent court with an active role.
|Ivanov A.M., Korchagin A.G. Some Theoretical Grounds of Development of Criminal Law in Modern Russia
The clear understanding of the main trends in criminal law allows not only to elaborate a correct attitude to it, but to develop adequate policy in combatting the crime within the country as well, suppose the authors of the article, inviting the readers to consider of that social problem.
|PHILOSOPHY OF INTERNATIONAL LAW
|Shugurov M.V. Dynamism of Correlation between International Law and International Morality: Theoretical and Methodological Aspects
The present article deals with regarding varied aspects of correlation between international law and international morality in the context of their historical development. Author suggests the approach in accordance with it the moral and the law should be analyzed as supplementing each other normative systems regulating international relations. Much attention is paid to analyzing the moral foundations of international law and to significance of international morality for further perspectives of its evolution in situation of globalization.
|Albov A.P., Bulavina M.A. Modern International Law and Global Justice: Oxymoron or New Normal
The article analyses international relations from the point of view of the principle of fairness. Particular emphasis is placed on the influence of international law on the formation of obligations of subjects of international law. The authors come to the conclusion that duties exist regardless of whether the shares subject to the rules of international law or not. However, international institutions may influence how the subject performs these duties.
|THE PHILOSOPHY OF CIVIL LAW AND LEGISLATION|
|Ryjenkov A.Ya. Hegel’s Philosophy of Civil Law
The article is devoted to the understanding of civil law in philosophical theories of Hegel. The ideas of a thinker about the nature of private law, the structure of relations of ownership and property, grounds for legally binding civil contract are identified and described.
|Artemenkov V.K. Anthropological-Legal Knowledge of the Essence Legal Person
The article analyzes the essence of the legal person from the standpoint of the anthropological interpretation of law. In this type of legal consciousness of man is the Creator of all legal, forming a volitional element of the legal person as a systemic whole in relation to other elements: property and base goal. Attention is drawn to the shortcomings of the explanation of the essence of the legal person by using the fiction as a scientific reception, the use of which limits the actual knowledge of interpersonal communication that are emerging and developing between people in the structure of most types of legal persons. From the position of anthropological-legal approach given the doctrinal definition of a legal person, specifics of the legal personality (legal capacity).
|PHILOSOPHY OF LABOR LAW|
|Tomashevski K.L. Axiology of Labour Law as the Doctrine of Values in Working Sphere
On the basis of the philosophical and legal researches of other scientists there is an author’s approach to the basic values of the labour law in the article. The author studies the legal regulation of moral and legal ideas of justice, freedom and humanism in the labour provisions of the Constitution of Belarus, Kazakhstan, Russia and norms the Labor Code of Belarus and Russia. Formulated their author’s definition. It revealed a number of norms of the labour legislation of Belarus, Russia and Kazakhstan, which have collisions with the legal ideas of justice, humanism and freedom of labour.
|THEOLOGICAL OF LAW|
|Fominskaya M.D. Biblical Thought and Legal History of Modern Law
In the article the author gives the analysis of biblical thoughts. The Bible is regarded as the basis of many modern legal theories. Researchers point out that the biblical tradition, the focus of which was Moses right, mainstream Western legal thought throughout the history of its existence in the face of Christian civilization. According to historians, the influence of the Bible on the European legal doctrine and theory of human rights took place in several stages. In the articles the author makes conclusions related to the impact of the Bible on the emergence of modern legal thought of the right.
|Fetisov T. Anthropology of Law in the Methodological Paradigm of the Theology of the Person: the Subject of Legal Relations and the Problem of Freedom
The various approaches to understanding of the essence of law and the subject of legal relations as well as socio-cultural values and spiritual aspects of personality that affect the determination of objective truth are under consideration in the present article. Based on the analysis of a wide range of sources, the author is making a logical conclusion about the impact of anthropological determinism on the study of law in the theological paradigm as well as about the necessity to take into account the phenomena of moral awareness and freedom of choice, as they are an integral accessory of the human person as the image of God.
|Klimenko A.I. Meet — a Strong State. Review the Monograph «A Strong State is as a Determining Factor of Social Progress» by A.D. Kerimov and I.N. Kuksin
This is a review of the monograph «A Strong State is as a Determining Factor of Social Progress» by Alexander Dzhangirovich Kerimov — Professor, Doctor of Law, Professor of RANEPA under the President of RF, the Chief Editor of the scientific and practical magazine «Russian Journal of Legal Studies», Member of the Public Scientific and Methodological Advisory Council under the CEC of Russia, and by Ivan Nikolaevich Kuksin — Professor, Doctor of Law, Professor of the Law Institute of the Moscow City Pedagogical University, Honoured Lawyer of the RF. The review analyzes the issues raised in the monograph, namely the problems of the state and its role in modern society, a number of issues related to the effective functioning of the state, the problem of the state’s role in the sustainable development of society in modern conditions.
|Belyaev M.A. What Kind of Problematization of Nonclassical Theory of Law Do We Need? Review of the Collective Monograph «Postclassical Ontology of Law» (edited by I.L. Chestnov, St. Petersburg: Aleteya, 2016. 688 p.)
This review is devoted to project of categorization of legal reality by using modern philosophical concepts. The results of this project are presented in the first collective monograph on the topic of ontology of law.
|Belyaev M.A., Denisenko V.V. Review of the International Scientific Conference «The crisis of Law in a Transition Society»
The review presents the most interesting reports and speeches of the participants of the International Conference «Legal crisis in a transition society» which was held at the Voronezh State University on February 3, 2017. The participants of the Conference discussed a new conceptualization of crisis in connection with legal history and legal practice. The discourse was extended to the areas of social philosophy, political science and comparative law.