Vol 21, No 3 (2017)

Articles
THE SOCIAL RELATIONS AND LAW IN SOVIET SOCIETY
Nemytina M.V., Mikheeva T.T.
Abstract

The year of 2017 has special significance in Russia. The events taken place one hundred years ago fundamentally changed the direction of Russian society’ development and the system of existed so-cial relations as well as form of government, political regime and legal system. The revolution happens when the government is unable to move the society forward by improving social relations existing in-side it. The revolution always denies existing social order, it has deep social roots and is not one-moment but long-term process that changes radically the whole system of relations. It could be defined as a new sociocultural programme implemented according to the interests of social powers that have just taken over the government. In revolutionary conditions, when one social order is being changed by another one, the law plays special role. Authors analyze tendencies of development of Soviet law and legal science. They show how sociologism of early Soviet socialistic law by the end of 1930-s was changed by etatistic positiv-ism. Marxist theory used by the Bolsheviks was a form of sociological theories because social interests considered as its determining part. From 1917 Bolsheviks’ social practice had pronounced sociological destination based on artistic (including lawmaking) activity of working people. But by the end of 1930ths Soviet law came under strong influence of etatistic positivism that mediated domination of par-ty-governmental system. Marx-Lenin conceptions about socialistic society as a system of relations based of social equality and justice were not brought to life and did not determine Soviet state and law’ type. Identification of interests as real reasons of social actions enables to find out genuine social structure of the Soviet socie-ty in which specificity of legal administration was predestined by the struggle between party-state bu-reaucracy and broad strata of working people. There were principal divergences between legally regu-lated social structure and relations that really existed in the same society. Deformation of social rela-tions predoomed the fall of the soviet system on the cusp of the 1980ths and 1990ths.

RUDN Journal of Law. 2017;21(3):331-354
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THE CONCEPT OF LEGAL IDEOLOGY AND ITS PLACE WITHIN THEORETICAL LEGAL KNOWLEDGE
Mikhailov A.M.
Abstract

The article is dedicated to revealing the nature of legal ideology, defining the quality of current academic research on the concept of legal ideology in contemporary theory of law, evaluating the corre-lation between the concept of legal ideology and the concept of legal doctrine. The article is purported to elaborate on the concept of legal ideology and to define its place in the system of theoretical legal concepts, its’ correlation with the concept of legal doctrine. Methodological basis of current research is formed by general scientific procedures such as analy-sis and synthesis, deductive and inductive reasoning, which allowed author to define the correlation of theoretical concepts. Some elements of system approach were also used in the present research with purpose of identifying the systematic qualities of legal ideology, its’ functions in the legal system. As a result of current research author expressed his understanding of the nature of legal ideology, defined the concept of legal ideology and evaluated the current state of scientific research in contempo-rary theoretical jurisprudence, revealed the foundations of legal ideology and defined its’ functions in legal system. Legal ideology is examined by an author as integral, possessing internal unity, mechanism of in-fluence of the system of ideas created on the basis of philosophical or religious doctrines on public, group and individual legal consciousness with the purpose of legitimation (delegitimation) of the sys-tem of positive law, legal practice, reinforcing unity and reproduction of the legal system by means of transformation of legal ideas into the normative mindset of addressee and forming the corresponding models of legal behavior. Legal ideology has functional nature; it is designed to present in conscious-ness of an addressee certain values as true, self-evident, natural and universal and to define the percep-tion of legal reality and model of legal behavior corresponding to such values. Legal ideology produces and reproduces legal reality (legal ideas, norms and the relations) and expresses it in the form of mental structures inseparably linked with the ideas of justice, measure (norm), freedom, equality, order and the law.

RUDN Journal of Law. 2017;21(3):355-379
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THE SOVIET NORMATIVISM AS A PARADIGM OF LEGAL THEORY
Denisenko V.V., Sukhinin A.Y.
Abstract

The reason for writing this article were two circumstances. The first is the constant desire of mod-ern authors to treat law as a system. In according to this view elementary cell (or, so to say, kernel) of this system is the set of rules, and all the structures of this system, regardless of their content, are com-posed of norms according to the logical and syntactical prescriptions and with the intentions of the leg-islator. The second is the discussion between supporters of a «narrow» and «broad» understanding of the law. In our humble opinion, this phenomena has not only cognitive, but also value arguments. In this connection, a hypothesis was born about the paradigmatic nature of the normative legal concept, as it developed in the USSR.This work was written to verify this hypothesis. The two questions are posed: 1. to what extent it is permissible to reconstruct soviet normativism in a paradigmatic manner; 2. by what rules this reconstruction should be carried out. The conducted research allowed to reach the following conclusions. Legal normativism (in its so-viet version) as a single and continuous tradition of setting and solving scientific problems fully corre-sponds to the criteria of paradigm, designated in the postpositivist philosophy of science. It is character-ized by technical universalism, since the normative definition of law proved to be suitable for the im-plementation of different goals. It is also characterized by ontological reduction - the reduction of nondiscrete legal phenomena (for example, the principles of law) to deontological judgments and the manipulation with them. The article affirms that the positive significance of the narrow-normative view of law consisted not only in the adaptation of the legal discourse to the discourses of power, but also in the indirect, albeit intensive, mental efforts of lawyers, which was affiliated to alternative legal schools.

RUDN Journal of Law. 2017;21(3):380-395
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THE PROBLEM OF LEGAL VALIDITY IN THE ANTI-METAPHYSICAL APPROACH (ALF ROSS’S CONCEPTION)
Vasilyeva N.S.
Abstract

The article analyzes the main approaches to the problem of the validity of law. As a result a num-ber of aspects of the phenomenon designated as “the validity of law” are distinguished: normative sig-nificance, social and (or) psychological efficiency, objective givenness, a binding force. To fill the gap in the theoretical constructions the author proposes such a notion of the validity of law that is independ-ent of philosophical approaches. Legal validity is defined as a specific mechanism (force) of normative influence on people’s conduct. Therefore, the binding force of law is considered not as an obligation to obey the law, but as a mechanism of giving rise to legal obligations. Moreover in this article all existing variations of providing a rationale for the validity of law are classified into two main approaches: meta-physical and anti-metaphysical. Alf Ross’s (Danish legal philosopher, one of the most prominent repre-sentatives of Scandinavian legal realism) concept of legal validity is considered as a perfect example of the anti-metaphysical approach and is reconstructed along with the analysis of major terminological is-sues, which occur in translations and studies of his legacy. The author concludes that a key to a proper understanding of Ross’s concept is an appropriate terminological division between the two basic con-cepts, which reflect his viewpoint regarding the validity of law in the context of Is-Ought problem in law. The author proposes to translate the Danish term «gælden» into Russian as «deistvennost'«, since it concerns law in force and its effectiveness, and «gyldighet» as «deistvitel'nost'«, since it implies a bind-ing force of law related to oughtness. Ross considers the former as a revelation of the latter in the reality and as a proper subject of jurisprudence (doctrinal study of law, based on strict empiricism, non-cognitivism, coherentism).

RUDN Journal of Law. 2017;21(3):396-414
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CONSTITUTIONAL PROBLEMS OF IMPLEMENTATION OF CULTURAL POLICY IN THE REPUBLIC OF CRIMEA AND SEVASTOPOL
Zametina T.V.
Abstract

The article considers the problem of implementing cultural policy in the new constituent entities of the Russian Federation - Republic of Crimea and Sevastopol. Russia historically formed as a state, uniting on its territory of the representatives of different peoples, cultures and faiths, held in some mod-ern countries, the policy of multiculturalism, actualizes the issue of combating xenophobia, national and religious intolerance in society, the preservation and development of cultural identity of different peo-ples. The construction of culture in the rank of national priority aims to give new impetus to the devel-opment of the cultural foundations of Russian constitutional system, to guarantee the unity of the cul-tural and legal space, the state and territorial integrity. Having considered the constitutional-legal bases of the state cultural policy at the Federal level and at the level of the new subjects of the Federation, the author reveals the problems of legal regula-tion, defines the main directions of improvement of legislation in this area. The author comes to the conclusion that some modernization need of the constituent acts of the Repub-lic of Crimea and Sevastopol in respect of fixation in a separate article of the right of peoples living on the ter-ritory of the Republic to preserve their national identity through the development of national-cultural autono-mies, national-cultural centers and associations, as well as provisions on the promotion of the regional author-ities the activities of those public associations that are inconsistent with Russian law. Further development require conceptual foundations of national policy in the new subjects of the Federation aimed at creating conditions for satisfaction of ethnopolitical, ethnosocial and ethnocultural needs residing in the Republic Nations and ethnic communities. Continuing controversies in the field of linguistic relations, is due, in particular, the failure of the Federation to recognize the right of the subjects to change the graphic basis of the alphabet may be im-paired by constitutional, legal, and financial guarantees regime of equality of status to all the languages of peoples and ethnic groups living on the territory of the Russian Federation. At the end of the article formulates proposals aimed at improving the existing Federal legislation and normative legal acts of the Republic of Crimea, Sevastopol and the Russian Federation in the field of cultural policy.

RUDN Journal of Law. 2017;21(3):415-435
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SOFT LAW REALISATION IN THE CONTEXT OF «PRINCIPLES RELEVANT TO THE USE OF NUCLEAR POWER SOURCES IN OUTER SPACE»: CASE STUDY THE RUSSIAN FEDERATION, THE UNITED STATES OF AMERICA AND THE EUROPEAN UNION STATES
Chernykh I.A.
Abstract
Nowadays one of the most significant discussions in the international public law relates to the concept and the role of “soft law”. Some researchers assert the point of view of existence of such law, others consider that it is a new source of public international law However, different approaches don’t exclude the basic char-acteristics of soft law that is a non-binding nature and a streamlines process of drafting. Because of this situation, Member-States of public international organizations tend to use soft law as a pragmatic way of organizing interactions among sovereign states the in case of difficulties to pass unified international treaty. This article argues that similar practices also exist in international space law. Since the entry in force of the Moon Agreement in 1979, the Member States of UN COPUOS have not passed any additional international space treaties. Instead, they have found a solution for new chal-lenges: drafting and accepting soft law acts like UN General Assembly Resolutions (hereinafter GA Resolutions) and others. While GA Resolutions are not legally binding, States can transform them into national legislations and doing so they will have to be responsible for certain space activities which have not been regulated internationally yet. The purpose of this article is to provide an overview on the establishment of soft law as a new source of international space law by analyzing and comparing state practice in Russia, the USA and in several Member States of the European Union (EU). The emphasis will be made on the transformation of provisions of the UN General Assembly Resolution “Principles Relevant to the Use of Nuclear Pow-er Sources in Outer Space” (hereinafter the NPS Principles) as nuclear power sources in outer space should be based on a thorough safety assessment. The article starts by a short overview of the concept of “soft law” and the resolutions produced by UN COPUOS. Then it will go on to the main three parts besides conclusion. The first chapter gives a brief overview of the drafting history of the NPS Principles and the second deals with activities of UN COPUOS and IAEA on the matter of nuclear power sources use in outer space. The last chapter pre-sents several case studies focusing on the following questions which provisions of NPS Principles have been implemented into national legislative system, what is the novel and what are the differences among the various national law instruments in these countries.
RUDN Journal of Law. 2017;21(3):436-450
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THE USAGES IN ARBITRATION
Musseron P.
Abstract

Defined as generalized practices with a legal force, usages play a significant role in arbitration. This role is due in particular to the limited legal provisions applicable for this alternative mode of resolution of disputes. One may observe this impact on the substance of the litigation. Usages are indeed rules of law as they produce legal effects. Even though statutes particularly recognize this role with respect to international arbitration, we suggest not to limit the impact of usages to this international context; this point of view may be explained in particular by criticisms to the dualism between domestic and international arbitration.

One may also note the role of usages on the proceedings. This role produces various consequences on the arbitral procedure in particular with respect to the definition of the powers of the Chairman of the arbitral tribunal as well as in connection with the professional and social activities surrounding arbitration.

RUDN Journal of Law. 2017;21(3):451-463
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