Vol 21, No 4 (2017)

Articles
THE PROBLEM OF JUSTICIABILITY OF HUMAN RIGHTS IN SITUATIONS OF THEIR COMPETITION AND THE PRINCIPLE OF PROPORTIONALITY
Timoshina E.V.
Abstract
When discussing justiciability of human rights in a situation of their competition two questions are of fundamental importance. The first concerns those factors which are able, at least, complicate jus-ticiability of the situation of fundamental rights competition. The author comes to the conclusion that various ideological patterns and values, relevant experience of which is able to polarize the society (in-cluding the judiciary), standing behind the different understanding of human rights are the factor that problematizes justiciability of competing rights and impedes rational, claiming to be generally signifi-cant, reasoning of the judgment. That’s why crucial second - methodological - question associated with the search for adequate tools of constitutional interpretation that would minimize the costs of in-volvement of the constitutional justice in the sphere of political discourse assumes importance. Considering the problem of justiciability of human rights and constitutional principles as their normative basis in its methodological aspect, the author concludes that within the framework dictated by the principle of proportionality of logic “weighing” the competing rights their legal nature trans-forms so that they were convenient for carrying the “weigh in”. According to the author, the logic of “weighing” could lead to a paradox: human rights are important only insofar as subject to restriction - a conclusion that radically changes the focus on the legal nature of fundamental rights. The article pre-sents critical arguments against the position of normative dualism between norms-rules and norms-principles that makes the “weigh” possible. The author proposes to consider the legal principles, from the standpoint of the textual expressions’ peculiarities of their normative nature in the constitutional acts, as a categorical (unconditional) norms of the high degree of abstraction, having entitle-binding na-ture. Rights and duties relevant to legal principles are absolute (unconditional) in the sense that they are not associated with any of the legal facts, but only with the very existence (existentia) of a person. Discussing possible methodological alternatives to the principle of proportionality, the author comes to the conclusion that the development of this methodology must be started from the normative - not the teleological - nature of the constitutional principles (fundamental rights).
RUDN Journal of Law. 2017;21(4):464-485
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PROPORTIONALITY AS A CONDITION OF SANCTION`S JUSTICE
Bazhanov A.A.
Abstract
The principle of proportionality is one of the fundamental legal principles defining the limits of state authority. The principle of proportionality, among other things, is the basis of legal responsibility and ensures the justice of the punishment being imposed. The roots of the requirement of proportionali-ty of punishment to the committed offense goes to the early history of mankind, the first institutions for responding to crimes - blood feud and talion - were based on the idea of proportionality. The univer-sality of these institutions in the history of mankind also attests to the universality of the principle of proportionality. Gradually, in the process of developing social relations, a transition was made from di-rect physical punishment, which was supposed to be blood vengeance and talion, to material compensa-tion for damage. At the same time, modern approaches to determining the proportionality of punishment for an offense arose. Today, the principle of proportionality underlies the legislative regulation and practical imple-mentation of legal responsibility in all democratic countries. It is actively applied in the practice of na-tional and international courts for the protection of human rights. The principle of proportionality re-quires that a balance of competing interests be found when establishing the sanction, and not only how the sanctioning measures will help protect public and private interests, but also what impact they will have on the person who violated the law. The principle of proportionality presupposes the duty of the legislator to provide in the normative legal acts such sanctions that ensure the proportionality of the act and punishment, and the duty of the courts to exercise their proper application. The analysis of the leg-islation and jurisprudence of Russia, the United States, Canada and Germany makes it possible to iden-tify some of the generally accepted methods of legislative regulation of sanctions (qualified offenses, differentiated sanctions, the possibility of imposing punishment below the lowest limit), ensuring the implementation of the requirement of proportionality, as well as judicial verification of proportionality of legislative sanctions and enforcement decisions (proportionality test).
RUDN Journal of Law. 2017;21(4):486-507
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RUSSIAN PROTECTORATE OVER BUKHARA AS IT EVALUATED BY BUKHARAN ELITE OF 19TH - BEGINNING OF 20TH CENTURY
Pochekaev R.Y.
Abstract
Goal. Article devoted to analysis of information and evaluations of the members of the Bukharan elite of the 1870s - 1910s on legal transformations made by Russian authorities in the Bukharan Emir-ate which since 1868 was under the protectorate of the Russian Empire. Author used works of contem-poraries - Bukharan officials who were loyal to emir’s government (Sadr-i Ziya, Salimbek) or criti-cized them (A. Donish, A. Sami) as well as oppositionists who demanded reforms (A. Fitrat, S. Ayni). Methods. Using methods of historical legal, formal legal and comparative legal analysis the au-thor characterizes attitude of contemporaries on the interference of the Russian authorities in the inter-nal affairs of Bukhara in general and their evaluation of transformations made by Russians in different fields of legal relations - taxation, trade, criminal and judicial and even the public health. Results. Author finds that social status and political vies of members of the Bukharan elite (au-thors of analyzed works) substantially affected their evaluation of transformations made in the Bukha-ran Emirate with initiative of Russian authorities. Conservative officials criticized these transformations and opposed any reforms in Bukhara. Reformers (jadids or Young Bukharans) evaluated many of trans-formations positively. At that it makes sense to note the contradictory position of some authors: they welcome changes carried out by Russian authorities but at the same were afraid that Emirate would lose completely its independence to Russia and its development would continued in the “Russian” (i.e. Eu-ropean) way without considering national and religious specific features, traditions of Central Asian state and law. Nevertheless, in fact, all authors demonstrated their adaptation for new political and legal realities, realized that influence of Russia became “fait accompli” and sometimes even gave information on getting out profit (by themselves or their familiars) in the changed circumstances in different fields of legal relations. Conclusions. The information of Bukharan contemporaries on the legal transformations in Bukha-ra under the Russian protectorate is a valuable addition to the legal monuments and notes of Russian and western contemporaries related to this subject.
RUDN Journal of Law. 2017;21(4):508-527
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FEDERALISM AS THE PRODUCT OF WESTERN LEGAL CULTURE
Platonov V.M.
Abstract
The Article is devoted to justification of the fact that the federalism has a number of features, which are common with the characteristics of liberal democracy. The author proves that both of these phenomena represent the political forms of the organization of society developed by the Western Euro-pean and North American political and legal cultures. The interrelation between federalism and democ-racy is traced in the western legal and political cultures at the conceptual, structural and functional lev-els, these phenomena are caused by typological specifics of the western societies. That means that the diffusion of the public power, competition of social groups, development of institutes of civil society are internally immanent to western political and legal cultures. The integrating elements of federalism are provided with its consideration in three main aspects - as the structurally functional principle characterizing society and the public power, as the way of the political and territorial organization of the state assuming a combination of elements of centralization and decentralization and as a process, characterizing society in aspect of its democratization. Representatives of the American and European political and legal science of the second half of the 20 century came to a conclusion that formation of the democratic state and realization of the princi-ples of federalism are impossible in societies where ideological opposition, lack of uniform political and legal culture, differentiation of society on religious, ethnic, social and to other principles takes place. In their aspiration to solve a problem of theoretical justification of a possibility of implementation of the principles of liberal democracy and federalism in any society, in any cultural and historical condi-tions, the ideologists of liberal democracy go for modification of their concepts. As an example the idea of consociation democracy is considered as some kind of «social dimension of federalism». However, despite such attempts, it is necessary to recognize that in the societies where the political power was in-stitutionalized in others, than in Europe and North America, historical conditions, where in a basis of relationship between the individual, societies and the state lie other principles, where liberalism and lib-eral democracy as concepts weren't a product of the society, and have been introduced from the outside, the principles of federalism in their western, liberal and democratic understanding are inapplicable because of lack of objective social, economic, political, ideological and cultural prerequisites to their real-ization.
RUDN Journal of Law. 2017;21(4):528-540
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THE LEGAL NATURE OF CONTRACTUAL PERFORMANCE IN THE GERMAN DOCTRINES OF THE 19TH AND 20TH CENTURIES
Schuchort R.A.
Abstract
The performance of the obligations in contract law is the complicated legal phenomenon. The Ar-ticle observes the theoretical aspects of the legal nature of contractual performance, which is the contro-versial matter and it’s have no unity in German legal doctrine and case law. However, without the clear and common understanding of the essence of performance of the con-tractual obligation, it is impossible to establish common performance criteria and its caused of incon-sistency of law enforcement. The purpose of Article is to conduct a comprehensive analysis of the legal nature of the perfor-mance of the obligations and the selection of its basic elements. In this regard, the author refers to the materials of the German civil doctrine of the 19-20 centuries. First, the Article analyzes the ideas of pandect law as the basis for the research of the essence of the contract performance and to this day does not lose its significance for the modern understanding of the legal nature of the contractual performance. In particular, the fundamental ideas of pandect law such as the fulfillment through acts of omission, determination, purpose etc., found its development in the theories of German legal thought of the twentieth century and in the German legislation and case law. Turning to the German legal thought of the twentieth century the Article observes the general contrac-tual theory, the limited contractual theory and the purpose agreement theory. In conclusion, the author singles our the three main elements - the act, will and purpose through the prism which should be considered the performance of contractual obligations and to determine its legal nature.
RUDN Journal of Law. 2017;21(4):541-564
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INVALIDITY OF CONTRACT UNDER THE ITALIAN LAW
Novitskaya A.A.
Abstract
The problems of regulating the invalidity of contract under the Italian law is dictated by the crisis of the pandect system of the division of irregular contracts into nullity and annullability. In particular, in the Italian doctrine and case-law attempted to add within the pandect system of invalidity of bargains supplement it with new types of irregular contracts, borrowed from the French civil law tradition. The author using comparative method and examines the invalidity of contract under the Italian law. Firstly, the Article deals with the influence of German and French legal regulation of invalidity of contracts on Italian Law. Secondly, the author discusses the difference between nullity (nullità) and annullability (an-nullabilità) of contracts and analyzes the basic concepts of contract law such as causa as the essential term of contract, for the most part, determines the organization of norms on the nullity of the treaty in Italian civil law. Also the Article focus on the public order, imperative norms under Italian contract law. In conclusion of the Article presents general conclusions on the regulation of nullity and annulla-bility under Italian contract law, as well as an overview of convalidation and conversion. The article is oriented to civilists interested in the comparative legal research and the Italian contract law.
RUDN Journal of Law. 2017;21(4):565-581
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THE ANNIVERSARY OF THE HISTORY OF STATE AND LAW DEPARTMENT OF THE URAL STATE LAW UNIVERSITY: DECENT MEETING Smykalin, A.S. (ed.) The Evolution of the Russian and Foreign State and Law. To the 80th Anniversary of the History of State and Law Department of the Ural State Law University (1936-2016). Ekaterinburg, Ural State Law University, 2016
Muromtsev G.I.
Abstract
The Review is devoted to a peculiar way of celebration of 80-year anniversary of department of history of state and law of the Ural State Law University which took place in September, 2016. The originality of celebration of anniversary is proved by the fact that the department headed by professor A.S. Smykalin, having done an enormous work. In particular, it published four huge volumes, totally 3700 pages under the general title «The Evolution of the Russian and Foreign State and Law». The pur-pose of this huge edition is marked in the subtitle «To the 80th Anniversary of Department of History of State and Law of the Ural State Law University (1936-2016)». The specified edition is remarkable due to its essential originality, from the point of view of the list of authors, structure of the published material and contents of articles. The authors are 256 famous scientists rep-resenting nearly 80 higher education institutions and about ten academic institutions from 37 cities of Russia and also from the universities and research institutions of the USA, Germany, Finland, the Republic of South Africa and Kazakhstan. Scientific articles on domestic and foreign history of state and law, the theory of the state and the law, philosophy and methodology of the law and also practically all branches of law studied in law colleges are presented in the collection. At the same time the articles of the authors who are not members of anniversary department are considered as their congratulation to the University. In the collection the histo-ry of department is deeply described and also - to a certain extent - a condition of modern historical and legal science and other branches of legal knowledge is estimated.
RUDN Journal of Law. 2017;21(4):582-587
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THE REVIEW OF THE 2017 ANNUAL CONFERENCE OF THE ASSOCIATION OF HUMAN RIGHTS INSTITUTES (AHRI) (27 AND 28 APRIL 2017, LEUVEN, BELGIUM)
Koneva A.E.
Abstract
The 2017 Annual Conference of the Association of Human Rights Institutes (AHRI) held at the University of Leuven (KU Leuven) in Leuven (Belgium) from 27 to 28 April 2017 is the one of the leading events among the professional associations uniting international law scholars in human rights field. The conference focused on issues of monitoring compliance with international human rights obli-gations of States in the activities of universal and regional human rights bodies, particularly UN human rights mechanisms, human rights treaty bodies and regional and sub-regional human rights mechanisms within European, Inter-American and African human rights systems. Within these issues a particular at-tention was paid to the interaction between universal and regional human rights systems, specifically the role of regional mechanisms in the promotion and protection of human rights and enhancing univer-sal human rights standards enshrined in international human rights treaties. The paper provides a brief review of the selected reports presented at the conference, which raised a particular scientific interest of the author. The author describes the reports devoted to: 1) factors de-termining adoption and enforcement of international human rights obligations by States; 2) States’ im-plementation of international human rights norms through the lens of interplay between the internation-al, regional and national levels; 3) the interaction between the universal and European human rights sys-tems (European Court of Human Rights with human rights treaty bodies and special procedures of the UN Human Rights Council).
RUDN Journal of Law. 2017;21(4):588-596
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