Vol 17, No 1 (2024)
Legal Thought: History and Modernity
Sources and Forms of Law: a Modern View on Basic Theoretical Provisions
Abstract
The positivist tendency in the Russian legal theory influenced the ratio between sources and forms of law. When the law is viewed solely from the point of state law-making monopoly, then the concept of sources of law is directly depended on the forms of state legal activity. Person appeals to the content of the latter if he or she wants to know what is due and permissible, naturally calling such forms as sources of law. Thus, the tradition to study law just as the product given by the state has formed the habit of equating the meanings of sources and forms of law. However, this approach leaves out the question of what factors prompt and accompany the process of lawmaking, as they precede a state sanction to adopt the law. Given that such factors lead to the creation of law exactly, not other social regulators, the authors propose a thesis that there is no sufficient ground to exclude them from the focus of jurisprudence as social science. This thesis is based on the observation that, as a result of mentioned exclusion, a significant part of social life, which is directly related to law-making and influences a content of legal norms, remains out of the lawyers’ competent survey. Such restricted view does not contribute to comprehensive mastery of the subject of the legal profession. Noteworthy is the fact that there is another approach also known to Russian jurisprudence, which had been substantiated by authoritative pre–revolutionary jurists. Among them were professors of leading legal schools G.F. Shershenevich (Moscow University), N.M. Korkunov (Saint Petersburg University), I.V. Mikhailovsky (Tomsk University). The study synthesizes their achievements on the correlation of sources and forms of law with relevant experience of legal history and comparative law, as well collates them with the realities of legal practice. It has been assumed that sources of law are reason, experience, faith, as well as composite categories and principles of law. On the contrary, normative acts, precedents, legal customs, normative treaties, legal doctrine has been studied as the forms of law. As a result, three main objectives has been accomplished: first, an alternative ratio between the concepts of sources and forms of law, that does not imply their equation, has been substantiated; secondly, authors have demonstrated that simplified understanding of the sources of law as some abstract categories (i.e. general will) does not always reflect the processes in the legal system; thirdly, authors have generalized the features and qualities of the basic forms of law revealing their theoretical advantages and disadvantages and updating common theoretical provisions against modern legal practice. One of the major conclusions is that the formal qualification of a legal act as a form of law (solely by external trappings without a meaningful analysis of its substantive features and qualities) is ineffective.
Law. Journal of the Higher School of Economics. 2024;17(1):4-39
4-39
Universality of International Human Rights Standards: A Necessary Utopia
Abstract
The article expounds how the international doctrine of human rights originated historically and substantially from the European intellectual traditions; nonetheless the origins of the doctrine do not impede the universalization of human rights as worldwide general standards for states and societies of different social, political, cultural, and religious types. The problem of the universality of human rights goes far beyond doctrinal issues: international human rights pretend to regulate internal relations and interstate interactions as a principle of international law, but the variety of political systems question drastically the possibility and appropriateness of such a universality. For the research the following method were employed: comparative and formal legal analysis, historical studies, deconstruction, critical approaches in law, posthumanistic apparatus. The author argues that the invention and development of the universal human rights relate both to the adoption of the fundamental legal documents and the apprehension of the tragedies of the world wars and totalitarianism. During the UN period the international human rights standards dominated the dynamics of the international law and significantly influenced its stricture and substance. For conclusion the author puts that the universality of human rights is not their descriptive feature but a normative claim. The latter is strengthened by instrumentalization of human rights as a general form of international legal discourse. Being such a form human rights are attributed to non-human beings to ensure their international legal protection — to artificial legal persons, fauna, flora, nature as a whole.
Law. Journal of the Higher School of Economics. 2024;17(1):40-67
40-67
Russian Law: Condition, Perspectives, Commentaries
Nature of Disposal of Property from Possession at the Institute for Protection of bona fide Acquirer
Abstract
One of the conditions for the protection of a bona fide acquirer is the nature of the disposal of property from the possession of the owner or the person to whom the thing was transferred into the possession of the owner. To date, the categories of will and possession remain controversial in the context of such a condition, which creates uncertainty in law enforcement. Possession in this condition should be understood as the actual domination of a person over the object of possession. At the same time, the theory of legal ownership is not applicable to the institution of protection of a bona fide acquirer. The will in that condition cannot be understood solely as a desire to transfer a thing and arise at the time of such transfer. The will to dispose of a thing from possession is formed before the transfer and is enclosed in the basis of the transfer of the thing. If the basis for the disposal of property from possession arose against the will and, thus, diverges from the will of the owner, then the transfer of property to them, even if committed voluntarily, indicates the disposal of property from possession against the will. If there are several persons authorized to alienate a thing, the will of the person who owns and alienates the property matters. At the same time, despite the fact that in the text of Article 302 of the Russian Civil Code of the it is indicated that the owner has the right to claim the property when it has left the possession of the owner and the person to whom the owner transferred the thing, against his will, the nature of the disposal of the thing from the possession of the person to whom it was transferred to those to whom the owner himself transferred it also matters the thing. Despite the fact that in art. 302 of the Civil Code, among the cases when the owner has the right to claim property, theft is called, such a term nevertheless has no criminal content, since there is no relationship between civil and criminal law in this matter. The Institute for the Protection of a bona fide acquirer contains regulatory legal norms and is applied regardless of the criminal legal qualification and the existence of a verdict in a criminal case.
Law. Journal of the Higher School of Economics. 2024;17(1):68-92
68-92
Labor Legislation Goals and Tasks as Indicators of Modern Labor Law Origin in Public Law
Abstract
The article analyzes academic thought about the relationship between public law and private law principles in the regulation of labor relations. At the same time, private legal principles are present only in some institutions of labor law (social partnership, employment contract, wages, working hours, rest time). However, the state intervenes here by setting the lower limits of the agreement. All other institutions are characterized mainly by public law principles. Thus, public law principles are somehow present in all institutions of labor law and significantly prevail in most of it. Based on the study of the content of the goals and tasks of labor legislation enshrined in the Russian Labor Code, it is additionally proved that labor law belongs to the sphere of public law regulation. The Constitution of the Russian Federation fixing the basic principles of labor legislation initially defined the vector of attribution of labor law to public law science In the study of modern goals of legal regulation of labor relations, attention is drawn to the fact that the current wording in the Labor Code of the goals and tasks of labor legislation does not contribute to strengthening guarantees of labor rights of employees, creates conditions for infringement of workers’ rights achieved during the years of Soviet power and leads to increased tensions in human society, since the state supports the employer to a greater extent (and not the employee) to the detriment of his rights and legitimate interests. Meanwhile, the precise formulation and legislative consolidation of the goals and tasks of labor legislation will contribute to the development of labor relations, maintaining legality in the law enforcement activities of judicial and executive bodies of state power.
Law. Journal of the Higher School of Economics. 2024;17(1):93-111
93-111
Crimes at Competition
Abstract
The accumulated antimonopoly and judicial practice in cases of cartels, recent changes in competition legislation (the so-called “fifth antimonopoly package” associated with the abolition of “cartel immunities” for bidding) and the latest decisions of the Constitutional Court of the Russian Federation (determination of April 25, 2023 No. 757-O; resolution of April 25, 2023 No. 1027-O; resolution of April 19, 2023 No. 19-P; resolution of March 30, 2023 No. 12-P) allow us to sum up interim results and predict further development new practice of criminal law countering cartel agreements among bidders. Of no less scientific interest is the “other side of the coin”, which is judicial practice in cases of crimes committed by customer representatives at auctions, which is also undergoing significant changes associated with the emergence of new and additions to existing criminal law prohibitions in this area. The purpose of this study is to identify problems of qualifying crimes at auctions and to develop scientifically based proposals for their resolution. From this perspective, we consider the controversial issues of qualifying restrictions on competition (Article 178 of the Criminal Code of the Russian Federation), abuse of official powers (Article 285 of the Criminal Code), abuse of official powers (Article 286 of the Criminal Code of the Russian Federation), taking a bribe (Article 290 of the Criminal Code), abuse in the field of procurement goods, works, services to meet state or municipal needs (Article 200.4 of the Criminal Code), bribery of a contract service employee, contract manager, member of the procurement commission (Article 200.5 of the Criminal Code), as well as crimes against property committed in connection with procurement procedures (Articles 159 and 160 of the Criminal Code). As part of the study, using the formal legal method, the legislation on competition and regulated procurement, which underlies the criminal law prohibitions under consideration, was analyzed. Using the systemic-structural method, the elements of crimes at competition were studied. Methods of statistical analysis and interpretation of law were used to analyze judicial practice and develop rules for classifying these crimes.
Law. Journal of the Higher School of Economics. 2024;17(1):112-132
112-132
Socio-Psychological Patterns in the Criminal Law
Abstract
Contemporary criminal law has a well-developed socio-psychological mechanism of formation and action, which is subject to a set of general and special laws. They characterize, on the one hand, the reflection in the mind of the legislator of criminalization and other factors, and on the other hand, the reflection in the sphere of the psyche of people of criminal legal means, first of all, prohibitions and punishments for their violations, as well as the reverse process of the impact of the results of this reflection on people’s behavior. The depth of penetration of criminal law into the psychological sphere of the individual and the possibility of using the most valuable mental qualities of a person for criminal law purposes, and, consequently, ultimately, the effectiveness of the functioning of criminal law, depends on the knowledge, consideration and use of these socio-psychological patterns in law-making and law enforcement activities. The importance of cognition and use of socio-psychological patterns in criminal law is also explained by its historically conditioned emphasis on the processes taking place in the human psyche (from fear of crime as a factor of criminalization to fear of punishment as a deterrent motive and moral correction as the goal of punishment). The work is based on the well-established provisions in psychology about the laws governing the consciousness and activity of people. The methodological basis for the study of socio-psychological patterns in criminal law were the principles of the dialectical method of cognition (objectivity and comprehensiveness of the consideration of the object, historicism, universal connection of phenomena, system), as well as general scientific (analysis, synthesis, induction, deduction, description, classification) and private (system structural, formal logical, sociological) research methods. The research made it possible to define socio-psychological patterns in criminal law, to show the mechanism of their action and use, as well as to create tools for measuring their practical implementation. For this purpose, the paper identifies two groups of laws that characterize the socio-psychological mechanism of the formation and functioning of criminal law: general (as a manifestation of universal patterns of human mental activity in the content of criminal law) and special (these are special interrelations of social psychology and legal consciousness with criminal law-making and law enforcement).
Law. Journal of the Higher School of Economics. 2024;17(1):133-162
133-162
Discussion Club
Frontier of Biology and Horizons of Jurisprudence: Influence of Studies in Nature of Human Aggression on Development of Criminal Justice
Abstract
The breakthrough in neurobiology and molecular genetics over the last decades has made the problem of understanding the neural and genetic basis of socially significant behaviour more topical. As a result, an increasing number of representatives of social and behavioural sciences are becoming interested in such research in order to reconcile and adjust the results of their developments in this area. Jurisprudence and, first of all, criminal-legal sciences are not an exception in this case. Their representatives have long circulated the opinion that it makes sense to consistently introduce the research methods implemented in the sciences of the natural science cycle and the data extracted through them into the practice of law enforcement. This article presents the results of an analysis of key trends in the use of neurobiological and genetic information in US criminal proceedings for serious violent crimes. These include: a consistent increase in the number of criminal cases being tried that include neurobiological research data; the lack of a permanent “mitigating” effect of neurobiological evidence; and more favourable court and jury perceptions of neurodata presented by the defence in juvenile delinquency cases; an increase in the proportion of appeals by defendants alleging neglect or ineffective use of neurobiological information by their defence counsel in the investigation and trial of criminal cases and, at the same time, a disproportionately high percentage of such appeals; the courts’ adherence to the position that demonstrating an increased risk of antisocial behaviour, with an increased risk of harm to the child’s mental health, is the most effective way to ensure that the defendant’s defence counsel is able to demonstrate an increased risk of antisocial behaviour. In doing so, the court actually requires lawyers to constantly monitor the latest research in the field, setting a similar standard of professional quality for themselves. Noting the discrepancy of these law enforcement trends with the provisions of traditional sociological theories explaining the nature of the origin of social deviations, the author formulates a number of polemical theses, scientific and practical discussion of which, in his opinion, can determine the prospects of using the achievements of biological science for the development of domestic criminal justice.
Law. Journal of the Higher School of Economics. 2024;17(1):163-189
163-189
Law in the Modern World
Belarusian Experience of Systematization of Legislation on Protecting Cultural Heritage through Codification
Abstract
The purpose of the article is to familiarize the legal community with the first experience of codification of legislation on culture and the practice of its application. This article discusses the features of reforming legislation on the protection of cultural heritage objects through its codification. The author, based on an analysis of the provisions of the Code of the Republic of Belarus on Culture, introduced in 2017, taking into account the constitutional changes made in 2022–2023, demonstrates the advantages and disadvantages of codification in this area of legislation. It is proved that the codification of legislation on culture made it possible to streamline numerous regulatory legal acts in force in the field of cultural (historical and cultural) heritage, the implementation of museum, library and urban planning activities aimed at the preservation and use of cultural heritage objects. The novelties of the regulation of ownership of cultural heritage objects, including archaeological monuments, archaeological artifacts, treasures, as well as the forced termination of ownership through judicial seizure of mismanaged monuments are outlined. Examples are given of solving the problem of financing the cultural heritage sector through the use of new tools (patrons and sponsors, public-private partnerships). Some attention is paid to the judicial protection of cultural heritage objects (historical and cultural values), a new solution to which is proposed in the Code of Culture. The article formulates some proposals to clarify the legal status of immovable monuments and movable cultural values, and provides a classification of tangible and intangible historical and cultural values by type. The structure of the State List of Historical and Cultural Values and the specifics of its maintenance from January 1, 2023 are outlined. Dynamic statistical data concretizes the research material and improves its perception. The author defends the idea that the adoption of the Code of Culture created the preconditions for the formation of a fundamentally new approach to state protection, recording and use of ancient monuments and art in modern life. And in this regard, the Belarusian experience of codifying legislation on culture can be useful.
Law. Journal of the Higher School of Economics. 2024;17(1):190-212
190-212
Copyright Owners, National Treatment and Current Developments in Private International Law
Abstract
The question of initial ownership is a preliminary question in all copyright claims. It is thus of fundamental importance for the success of any copyright claim. The confrontation of the principle of territoriality vis-à-vis the universality principle finds its reflection in the choice of a connecting factor for the question of initial ownership of copyright. Proponents of universality tend to apply the lex originis rule, which takes into consideration legal relations existent in the State of the origin of the work. On the other hand, there are proponents of the strict territoriality principle who apply lex loci protectionis conflict-of-laws rule to the whole copyright statute, including the ownership question, which leads to de facto violation of legitimate expectations of copyright holders. One of the often-mentioned arguments of lex loci protectionis proponents against the use of lex originis is that lex originis is not able to comply with the national treatment principle enshrined in most international copyright instruments. The purpose and aim of the article is to analyze whether the lex originis conflict-of-laws principle indeed contradicts the national treatment principle. For that purpose, the Russian judicial practice is analyzed, for Russia is one of few countries using the lex originis principle, which has also had an opportunity to develop an advanced judicial practice in this regard. Most EU countries prefer the lex loci protectionis connecting factor to determine the initial copyright owner, which, however, presents a substantial hindrance to the single market. In order to not touch the dogmatically settled lex loci protectionis principle and at the same time enable free movement of services within the single market, the EU has introduced a home country rule in its secondary law, which is a material copyright law derogation made in favor of the functioning of EU single market. Compliance of this phenomenon with the national treatment principle is also analyzed in this article. The author concludes that the conflict-of-laws principle lex originis, as well as the home country rule, are indeed incompatible with the national treatment principle. It is further concluded that it is through the lex originis principle that the essence of national treatment is realized. In order to interpret international copyright treaties secundum ratione legis, the question of copyright ownership should be explicitly excluded from the scope of national treatment, thus from the scope of lex loci protectionis.
Law. Journal of the Higher School of Economics. 2024;17(1):213-245
213-245
Influence of the Soviet (Russian) Law on the Chinese Criminal Procedure Laws
Abstract
The first Criminal Procedure Law (CPL) of China issued in 1979 was greatly influenced by the Soviet Criminal Procedure Law in multiple dimensions including the framework, concepts, principles, and specific institutions. Although the Chinese CPL has changed a lot after three amendments in 1996, 2012 and 2018 respectively, the influence of the Soviet Law can still be noticed in many aspects of the current law. The paper explores how the Soviet Law has shaped Chinese Criminal Procedure Law into the way it is. Part I explores the historical development of Chinese CPL, indicating the close relationship between the Chinese Law and the Soviet Law. Part II compares Chinese CPLs with the Soviet (and its successor Russia) CPLs, trying to identify their similarities and differences. In the Part III the author draws tentative conclusions from the comparison and predicts the continuing influence of the Russian law model on Chinese CPLs in the future. The paper primarily relies on comparative study and historical analysis. The legal framework, legal terms, theories, principles, and specific institutions will be examined to illustrate the great influence of the Soviet Law on Chinese Criminal Procedure Law. The study will help to better understand the evolution of Chinese criminal procedure law and to predict more accurately its further development.
Law. Journal of the Higher School of Economics. 2024;17(1):246-263
246-263
Municipality in the Turkish Law: Concept and Content
Abstract
There are two types of urban municipalities in Turkey: urban (the administrative center of a district with the status of a “city” or a settlement with a population of 5,000 or more) and metropolitan (provincial municipalities with a total population of over 750,000). The subject of the present article, the author has chosen to analyses the categorical content of the first level municipality in the administrative doctrine and law of Turkey. The treatment of the topic is justified from several angles. There are no scientific articles and monographs devoted to the Turkish administrative doctrinal understanding of the category “municipality” in the Russian literature. The lack of study of the subject in Russian literature does not allow a comparative analysis of the categorical apparatus of the legislation of two countries: Russia and Turkey, and therefore does not allow comparing the experience of formation and development of local government in Turkey when characterizing organizational models, legal, territorial and economic foundations of local government (governance) in different countries. In Turkish legal science, considerable experience has been accumulated in the study of the practical activities of municipalities. The purpose of the present article is to determine the basic features of the first level municipality established by the Turkish legislator, such as urban area and city territory, status of public legal entity, administrative and financial autonomy of the municipality, and administrative trusteeship as an element of decentralization of management in the executive power system of the country. On the basis of methodology of formal-logical analysis and comparative jurisprudence, the peculiarities of essential characteristics of the municipality are revealed. The conclusion is made that the legal basis for the existence of municipalities is associated with the legal structure of the administrative structure of the state. The understanding of the municipality is significantly influenced by the unitary form of state structure and decentralized administrative mode of government in the Republic of Turkey. It is argued that a municipality endowed with the status of a public legal entity differs significantly from a private legal entity. One of the problematic and at the same time important features in the understanding of the municipality is the administrative trusteeship. An analysis of the country’s legislation suggests an emerging trend of strengthening local autonomy by reducing the practice of trusteeship.
Law. Journal of the Higher School of Economics. 2024;17(1):264-289
264-289