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Globalization is not a descriptive term to depict the contemporary realities of law; it works mainly as a regulatory conception to affirm certain regularities of social evolution to be respected by scholars, lawyers, and politicians. The reflections about law in the era of globalization do not represent law as it is, but rather prescribe which law is needed for mankind to meet the perils of our changing times. Unanimously rejecting the Hobbesian model, the pluralists depict human societies as self-organizing entities capable of producing their own autonomous regulation, independent of the will and discretion of particular individuals. The phenomena summed under the title of legal pluralism have neither historical nor social originality as such. Legal pluralism does not reveal new social laws or regularities, it does not provide new explicative schema (rather it merely changes the words in the older schema), and the challenges of globalization are only relatively new. Rather the reality referred to through these terms outlines a renewed intellectual climate which offers new axes for discourses. From this point of view, the problem of legal pluralism, and the issue of globalization are not devoid of scientific interest, and discussions on this matter can effectively contribute to the progress of social knowledge. But, in all probability, one cannot reasonably expect that from replacing terms and factual data one can gain innovative knowledge about the interrelation of law and society.
This volume examines the elements of formalism and decisionism in Russian legal thinking and, also, the impact of conservatism on the interplay of these elements. The actual conservative narratives, about the distinctiveness of Russian law, reveal certain features of the intellectual culture that is transmitted in legal education, scholarship and practice. These narratives are based on the idea of sovereignty understood as legal omnipotence of the state. References to sovereignty justify the requirement of legality in the sense of fidelity to the letter of the law. They also often serve as a rationale for crafting exceptions to constitutional non-discrimination principles as they are applied to political, religious, sexual and other minorities.
This chapter examines how Russians justify wars in the post-Soviet era. As will be shown, the Russian philosophical tradition developed somewhat differently from that of the West. Neither in Imperial Russia, nor during the Soviet period, did secular writers pay much attention to issues related to the justification of war. Meanwhile the Russian Orthodox Church tended to view war as an occasionally necessary lesser evil, not as something which can be characterized as ‘just’. Since the collapse of the Soviet Union, political leaders have tended to adopt a Realist approach and to frame war in terms of security rather than justice. Church leaders and secular intellectuals have on occasion referred to Russia’s wars as 'just' and made some reference to Western just war principles, but they have not for the most part endorsed those principles fully. It remains to be seen whether Russian thought on this issue will converge with that of the West or diverge further from it.
This paper studies the development of economic analysis of law in Soviet and Russian law, and a number of factors influencing this development. In Soviet law, the influence of economics on law was theoretically conceived in terms of Marxist dialectics of basis and superstructure. When Russia left the USSR in 1991, judges had to evaluate whether application of Soviet legal rules would make sense or whether there were compelling economic reasons to decide cases otherwise. The privatization and other economic reforms of Yeltsin’s Government were carried out with the help of rather inconclusive and inefficient legislation. In the 2000s, the economic analysis of law gained momentum in Russian law: an entire branch of the judiciary (commercial or arbitration courts) supported its application. After the Higher Commercial (Arbitrazh) Court was disbanded in 2014, Russian law is becoming formalistic again; references to economic analysis of law are rare both in case law and in legal scholarship. The author explains this development in the prism of the governmental centralization policies which imply that judges shall be guided only by the sovereign (state) will, without attempting to reinterpret or cast doubts on this will from the standpoint of economic rationality or from other standpoints.
This paper examines how the perception of the concepts “state” and “law” in Russian legal culture impacts the interpretation and application of human rights in Russian legal system . This analysis is carried out from the perspective of Friedrich Müller’s structural theory of law. The author argues that the legitimation of legal norms through the political power is considered in Russian law as a conceptual condition of binding force of these norms. This perception of “law” indirectly con- fers on political leaders the limitless and unchecked power of exception and is incompatible with the idea of “human rights” as rights independent from state will . This conceptual framework in Russian law implicitly subordinates human rights to collective interests and to the state will which represent these interests.
In secular societies, the principle of rule of law implies that churches and other social institutions may not assert themselves as above the law or replace the official law1 with their moral or canon rules. Abiding by this principle is a problem not only for the Russian Orthodox Church, but also for many other religious denominations that historically have carried considerable sway over social and political life in their countries by way of their “moral entrepreneurship” and that are now reluctant to cede that influence.
The relations of the Russia and Britain with the self-declared state of Yettishar was a striking example of different approaches of two empires to the states and peoples of the Central Asian regions within so called “Great Game’, i.e. Russo-English rivalry in the 19th c. The trade treaties of Yattishar with the Russian Empire of 1872 and with the British Empire in 1874 became a legal reflection of these approaches and are of great interest within the context of the historical experience of the legal status of unrecognized states and positions of the rival “world powers” towards such states. The purpose of the article is a historical-legal analysis of above-mentioned treaties and comparative-legal analysis of them with the similar treaties signed by Russia and England with other Central Asian states during the
same period. Author attempts to clarify if treaties of 1872 and 1874 confirmed recognition by both empires of Yettishar as a subject of international relations and how these legal documents reflected confrontation of Russia and England in the region. The study is mainly based on the formal-legal, historical legal and comparative-legal methods. Also author used the methods of legal anthropology and general history. The results of the research to a certain extant correlate with modern approaches in the policy of Russian and western powers in Central Asia in terms of political situation in the region as well as political, legal and cultural traditions of Central Asian states and peoples.
The book is the first research in the Russian scholarly tradition of accounts, notes and memoirs of Russian and Western travelers who visited Mongolia in 17th to early 20th century as a sources on traditional state and law of the Mongols. The authors of notes were diplomats and intelligence officers, scientists and merchants, missionaries and even “extreme tourists.” Using their notes gave an opportunity to form a view on different aspects of power and legal relations in Mongolia. Diverse goals of trips to Mongolia caused visits of foreign contemporaries to various regions of Mongolia at different stages of their political and legal development. The analysis of that sources allows to create the “legal map” of Mongolia during the period of independent khanates and under the power of the Manchu dynasty of Qing including specific features of the legal status of the Northern Mongolia (Khalkha), Southern (Inner) Mongolia and the Zunghar Khanate which was independent state till the mid of the 18th c. The research is based on the analysis of about 200 texts written by travelers as well as on additional materials on history of foreign travels to Mongolia, on persons of travelers themselves. This approach allowed to form an impartial position on the notes and to analyze them critically.The book is designed for specialists in the field of history of state and law, comparative legal studies, legal and political anthropology, historians, mongolists, specialists in source study, political scientists and ethnographers. It also could be an additional material for students who study these specialties.
The article analyzes specific cases of making court decisions by the rulers Central Asian states on the basis of sources which were either unrelated to the basic legal system of their state or were not sources of law. The author characterizes cases from the Bukhara Khanate of the 16th and 17th centuries and from the Kazakh Steppe of the first half of the 19th century. He finds that rulers used such sources of their court decisions to demonstrate their political position for their own subjects or rulers of neighboring states.
This work is an introductory article to publication of the translated book "Introduction to Sociology of Law" by N.S. Timasheff
The conception of the outstanding Russian jurist Nicholas Timashev is usually referred to by researchers of political and legal ideas in the field of sociology of law. Timashev usually refers researchers of political-legal ideas to the field of sociology of law. However, this classification narrows the prospects that this concept offers in terms of a pluralistic approach to law - here sociology is only one of the many perspectives for analyzing law, along with psychology, political science, ethics, and other social sciences. In this paper it is argued that Timashev's concept represents one of the most original legal-theoretical constructs of the twentieth century. For a variety of reasons, Timashev did not position this concept in the field of legal theory or philosophy of law. The title of his main work ("Introduction to the Sociology of Law") does not correspond to the content of this work, in which important problems of theoretical jurisprudence are discussed, and in which Timashev tried to formulate a methodological basis for the discussion of additional aspects (collective psychology, ethnology and anthropology, ethics, etc.) of these problems of legal theory.
The article analyzes data on the realities of Turkmen life before and during the Akhal-Teke expedition of 1880–1881 contained in the novel “Under the battle fire” by V. P. Cherevansky, а highranking statesman, scientist and famous writer of the second half of 19th — early 20th century, who himself was a participant of this expedition. In addition to the main plotline, the novel describes specific features of relations between various Turkmen tribes and their leaders, position of Turkmens towards neighbor states such as The Emirate of Bukhara, The Khanate of Khiva, Persia, their
relations with the Russian and British Empires during the process of joining the Central Asia to Russia. Together with invented characters (or figured under false names) real historical figures are acted in the novel: general M. D. Skobelev, colonel Petrusevich, Turkmen leader Tykma-sardar, orientalist A. Vambery, English journalist E. O’Donnovan and others. V. P. Cherevansky’s personal acquaintance with his characters allowed him to faithfully describe Turkmen realities during the “extreme” period of their life (before and during the joining of the Akhal-Teke oasis to the Russian Empire) and enliven information of his contemporaries and scholars avoiding “oriental” views typical for contemporary western and some Russian literati.
This paper considers the methodological foundations of Hans Kelsen’s conception of justice. As well, the author examines connecting links between this conception and the key ideas of the pure theory of law. The author’s attention focuses on the critical remarks that are typical for disapproval of Kelsen’s theory in Russian jurisprudence. The paper argues that the pure theory of law is far from denying that law can be considered as a social phenomenon and that there is a connection between moral convictions of legal subjects and how they behave themselves in processes of creation and application of law.
The present paper examines how Eugenio Bulygin interprets a number of key problems of legal theory of Hans Kelsen. Among such problems are such as normativity of law, nature of legal norms, the distinction between norms and normative propositions, normative consequences of court decisions and their logical foundation, description of law-application in terms of logic, completeness and consistency of law, and so on. The Argentinian legal scholar pays particular attention to separation of the methodological principles of legal positivism in the pure theory of law from the elements of transcendentalism herein, which were taken by Kelsen from Kant’s philosophy. The paper shows the actuality of Eugenio Bulygin’s interpretation and critical analysis for better understanding of pure theory of law in the contemporary legal scholarship.
The article is an analysis of the report of Ivan Unkovskiy, the ambassador of the Russian Empire in the Zunghar
Khanate in 1722–1723 devoted to the Oyrat trial with the participation of members of the Russian embassy.
This text allows author to reconstruct the basic elements of the judicial proceeding in the Zunghar Khanate including
its stages, status of participants, methods of gathering and evaluation of evidences, etc. This case also gives an opportunity for the comparative legal analysis of specific case and rules of court proceeding in the Oyrat law, especially in the code of laws Ikh Tsaaz (“Great Code”) of 1640 and two edicts of Galdan Boshughtu Khan of 1670s which supplemented it. Besides that, the specific feature of this case is a participation of foreigners in the trial. It allows to clarify the reasons of privileged status of Russian participants in contrast to less capable one of foreign subjects who also were under trial in the Zunghar Khanate.