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This essay examines methodological nuances connected with historical research of Russian law. These nuances are studied against the backdrop of two books published respectively by Professor Ferdinand Feldbrugge and Professor William Pomeranz on Russian legal history. The methods employed by these authors reveal specific features of Russian legal language and mentality which can be helpful in explaining the dissimilarities between legal and political developments in Russia and the West. They place particular emphasis on the development of legal language and productively analyze many current issues of Russian law through the lens of history of concepts. These books are evaluated as important contributions to comparative analysis of Russian and Western legal cultures. The key events of Russian legal history are considered in a perspective that sheds light on the current challenges faced by Russian law.
This paper deals with the book "The Art to Be a Jugde" by the Canadian author Louis Le Bel. This author demonstrates that judicial decision-making cannot be taken as a mechanical one - a judge has to understand the nature of the contentious situation and to evaluate consequences of her decision not only for the parties to the process but also for the entire society.
One of the urgent problems requiring special research is the comprehensive crisis of legitimacy that accompanies globalization, and one of the manifestations of which is the fragmentation of the phenomenon of legitimacy due to the fragmentation of the mechanisms of legitimation associated with different aspects of legitimacy being: power legitimacy, religion legitimacy, moral legitimacy, etc. State power legitimacy crisis has political and communicative grounds, such as: problematization of state sovereignty existence and state power existence; expanding political and non-political actors will to power; partial or complete lack of political will among citizens, which in turn is caused by a low level of public involvement in politics, which in turn is due to the usual functioning of political communication. The rules of language games (political, legal, cultural) are not created by the participants themselves in the result of a consensus-communicative discourse, but are set from the outside and are no longer shared by all members of a particular communicative community. The shaking of habitual traditions and norms of behavior leads to the imposed rules rejection and disruption of the consensus-communicative public discourse mechanisms functioning. These circumstances require a rethinking of the very phenomenon of power and the development of strategies for overcoming the crisis. From the point of view of a deliberative strategy (J. Rawls, J. Cohen, J. Habermas, S. Benhabib), the organization of a communicative power could become a way out of the crisis. This process requires all interested in the decision parties consensus expression. According to the agonistic strategy (C. Mouff), power is not interpreted as a purely external relation that develops between two given identities, but as something that establishes these identities themselves. According to J. Rawls and J. Habermas, it is necessary to fi nd a way to eliminate power, because the more democratic a society is, the less power is present in its social relations. But according to C. Mouff, power relations are the basis of social relations, and the main issue of democratic politics is not how to eliminate power, but how to create such forms of power that could be more compatible with democratic values. Both approaches have the ability to bring the legitimacy of power out of the crisis, as long as the authorities will demonstrate its creative potential , which consists in protecting the fundamental rights of citizens; harmonious combination of public and private spheres; freedom realization.
Objective: A study of the Golden Horde historical sources of the midfourteenth century containing information on the history of law and trials in the Golden Horde, providing a comparison of the actions of the Golden Horde authorities with similar actions taken in other countries of that time. This includes a general assessment of the standards of the Golden Horde proceedings in the period under study.
Research materials: The Golden Horde historical sources, namely, legal documents from the so-called “Venetian collection”, along with other sources from the fourteenth and fifteenth centuries related to the proceedings of damages at the international level, including acts of the Venetian colonies of the Black Sea and medieval Rus’ian charters.
Novelty of the research: This study is the first attempt both at a historical and legal analysis of the Golden Horde sources containing information about trials, as well as a comparative analysis of the actions of the judiciary at different stages of civil litigation which included international participation in the Golden Horde and contemporary states.
Research results: The author reconstructed the main stages of the civil process in the Golden Horde (from filing a lawsuit to a court decision) and revealed the specifics of a particular case in connection with the participation of a foreign element, in addition to its public and legal nature (the lawsuit was not against private individuals, but against the state, i.e. the Venetian Republic). The author established that all procedural actions performed by the Golden Horde authorities in the course of the proceedings, as well as those to ensure the enforcement of the decision, had analogues in the procedural practice of other states that had interests in the Black Sea in the fourteenth and fifteenth centuries. Accordingly, the author concluded there existed a high level of judicial practice in the Golden Horde, including elements which derived from foreign experience.
The article analyses the views of Russian researchers on the questions of the evolution of the statehood and law of the Khanate of Sibir. The authors note that the fifty years of studying this problem saw a transition from the efforts characteristic of the Soviet historical science to transfer the theory of feudalism to the Siberian realities to the understanding that the analogies of the state institutions should be searched within the framework of the Horde heritage and its inertia in the post-Horde world (V.V. Trepavlov, D.М. Iskhakov). Despite this positive shift of research focus, the analogy method has led to the situation that some of the proposed schemas lack the understanding of the Siberian specifics, whose detection is difficult because of the poor source base. The efforts to solve these contradictions were made by using neo-evolutional theories in the study of nomadic societies, including archeological
studies on the monuments of the Khanate of Sibir used as the materials (S.F. Tataurov, А.V. Matveev). The proposed new approaches allowed reconstructing the administration apparatus as a whole (khan, land assembly, prime minister (bek), qarachi or qarachi union, princes and murzas) and revealing the specific origin and fates of the representatives of the Siberian aristocracy (V.V. Trepavlov, D.N. Maslyuzhenko). Different schemas of interrelations of the central and local powers and their manifestations in the distribution of fortified fortresses were revealed (S.F. Tataurov, А.V. Matveev, S.А. Chernyshov). A new trend in the research was the determination of the composition of the courts of the Kuchum dynasty that happened to be in Muscovy by capture or departure (А.V. Belyakov). In these conditions, Siberian tsarevitches became the center of attraction for other natives of Siberia; this gives new opportunities in the study of the statehood of the Khanate of Sibir when doing micro-historical work with unpublished sources from
the Russian State Archive of Ancient Acts. It is this direction that is the most perspective for further work. Within the studies of the law of the Khanate of Sibir, the range of sources has been detected that can be used to conduct a deeper study of legal institutions, in particular, the question of the importance of the real detection of the balance of ordinary and sharia law on its territory has been raised. A special role in the reconstruction of legal institutions belongs to the study of tax relations and the institution of Tarkhanate, connected with it, as well as trade regulation which obviously played a significant role in the history of the Khanate. The historiographical errors revealed during this research give reason to revisit some studied questions taking into account the latest groundwork in the field of the usage of interdisciplinary approach.
The book analyzes the legal aspects of the interaction between the Russian empire and the states of Central Asia since the early 18th century to 1917. The author describes the main stages of Russian influence on the legal development of the Central Asian khanates, outlining the main directions of this influence. He focuses on the ways and methods of the Russian legal policy employed in the Central Asian khanates placed under the Russian protectorate. He also explores the problem of the Russian legal policy implemented in the Central Asian regions with special legal status as well as under conditions of martial law, revolutionary situation, etc. The research undertaken by the author allows understanding of the historical experience of the integration within the Eurasian space of which the next stage is being actively realized today as well as evaluating the efficiency, strengths and weaknesses of the legal means of this integration in the 18th through the early 20th centuries. The book is designed for specialists in the fields of history of state and law, Russian history, Eastern studies, political science, as well as for undergraduate students majoring in the aforementioned specialties.
The article is an analysis of Babur's information on justice of himself and contemporary rulers of the Central Asia, mostly reprecentatives of Timurid dynasty. Author also pays attention to legal sources used by Babur and rulers mentioned by him to take their court decisions.
Legal possibilities for historical interpretations in Russia are more flexible than in many other post-communist countries. However, this extent of freedom of opinion be‐ came an irritating factor for the authoritarian regime in the 2010 s: the freedom to evaluate historical facts is an obstacle for imposing ideology everywhere. Under the presidency of Dmitry Medvedev, a number of tools were introduced into Russian law to secure the state control in school education. At the international level, Russia star‐ ted to actively fight against ‘falsifications of history’ and employed a rich arsenal of ideological tools to defend the Soviet interpretation of World War II. In the domestic law as well, new corpuses delicti were introduced in criminal and administrative law to defend the Soviet history from attempted falsifications. This development coincided with the general trend to exceptionalism characterized by the legislation on foreign agents, or restrictive amendments in the anti-extremist law. The present paper will at‐ tempt to analyze this development and its ideological and legal contexts.
This paper focuses on the evolution of Russian legislation, political thoughts and public administration as for corruption and anti-corruption measures in the exercise of public functions.
This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.
One of the main ambitions of the Russian Constitutional Court from the moment of its establishment has been to work as an intermediator between Russian law and the Western legal tradition, reshaping the former by bringing it closer to the latter. Such a role gave to the Court a justification for its existence in Russian law where this Court has never had any real power of constitutional control over the political authorities and their enactments. Human rights have been an important topic in these intermediating activities of the Court which actively utilised the human rights language to change the statist perspective common to Russian legal education, scholarship and practice of law. The topic of human rights turned out to be of great importance for the self-legitimation of the Court in Russian law and for aligning Russia with the European legal standards. Changes in the state ideologies in the 2000s involved for the Court the need to reconsider its approaches and to employ more conservative interpretations of human rights. After a number of discrepancies with the European Court of Human Rights, the Venice Commission and other European institutions, the Court increasingly relied on exceptionalist argumentation. In author’s opinion, with this the Court not only abandons its original function in the Russian legal system, but also could lose its institutional niche in Russian law. Assuming to have the sovereign power of exception, the Court could enter into an indirect normative conflict with the presidential power.
Lawyers work with statements about verisimilitude of factual statements, while trustworthiness of these statements is evaluated against the backdrop of coherence of factual descriptions. A correct conclusion in law means a consistent reconstruction of normative meanings in the way that fits best the normative system and that allows to cogently subsume factual states of affairs under the established normative meanings.
There are two traditions of determining the foundation of legal validity – metaphysical and anti-metaphysical. At the beginning of the 20th century the anti-metaphysical tradition was supplemented by psychological realism, which was developed in the framework of the Uppsala School and the psychological school of Leon Petrażycki. It is possible to trace the common line of reasoning on the problem of legal validity within Continental or psychological legal realism: from Petrażycki (and his students) and Axel Hägerström (and his students, including Alf Ross) to Enrico Pattaro. Psychological legal realism is an approach to law that can be characterized by 1) an orientation toward the study of law in the context of facts of psychophysical reality; 2) the idea of the psychological nature of law; 3) recognition of the authoritative-mystical nature and objectification of legal experiences; 4) the irreducibility of law to the behavioral aspect; etc.
The term “Uppsala School of Legal Realism” denotes the theoretical legal position of scholars from Uppsala – Hagerström and his most faithful students, Anders Vilhelm Lundstedt and Karl Olivekrona – within the framework of a broader Scandinavian legal realism as part of the continental realistic tradition. The philosophical foundations of the Uppsala School of Legal Realism include: rejection of subjectivism and metaphysics, naturalism, non-cognitivism. This school paid special attention to questions about the possibility of scientific knowledge about law, the construction of a value-neutral theory, and the search for reliable methodological foundations for the science of law. The revolt against subjectivism and metaphysics led to the assertion that there is – and can be the subject of scientific knowledge – only one reality, namely spatio-temporal, psychophysical. Since legal concepts do not directly correspond to the facts of such a reality, they are considered as illusions and even magical formulas, which, however, are based on actual psychological facts and have an effect on people's consciousness.
In the framework of the Uppsala School from a realistic point of view law appears as a machinery of coercion, as a factual order based on the organized social force. Within that order the rules of law are independent imperatives and motives of behavior, which have a suggestive, binding effect on the consciousness and behavior of people. The validity of law is determined by the power of organized social coercion and is regarded as a complex phenomenon of the people’s inner world. As a complex psychical fact, legal validity is considered a psychological self-binding engendered by the physical coercion machinery in action and the influence of cultural, social and even biological factors.