Vol 22, No 2 (2018)

COMMON THEORY OF LAW AND STATE
Socio-Interactive Level of the Socialization of the Law as a Resulting Stage of the Law-Making Process
Sokolova A.A., Trofimov V.V.
Abstract

The article analyzes a socio-interactive level of law socialization that is presented by the authors as a resulting stage of the legislative process, completing, in a sense, the formation of a legal rule. It is argued that the law becomes an objective reality only when it is included into the system of social interactions as their indispensable attribute. The authors explore the socio-interactive component of the law socialization in its connection to the role that the processes of socio-legal interaction play in the adaptation of legislative mandates introduced into the juridical practice by the subject of law-making. This perspective on the understanding of the law-making processes is grounded in the sociological conception of law that is compared to the philosophical and legal positivism approaches, while each conception is seen as an element of the integratrive legal consciousness. Integrative approach is seen as perspective in this context since it can combine all the main aspects of law (legal norms, legal relations,  and legal consciousness). Socio-interactive aspects of law socialization are analysed through the theoretical and methodological approaches from foreign and post-Soviet theories of law and general sociology where the phenomenon of interaction (cooperation, communication) is seen as a key feature of the social in general and the socio-legal in particular. The article provides a deep insight into the specifics of law socialization in the sphere of civil life and public power competencies where different levels of legal mentality and approaches to law occur. At the same time in both cases the law as an efficient tool and the result of the law-making process is reificated (objectivated) in real life only after the socialization stage.

RUDN Journal of Law. 2018;22(2):146-171
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COMPARATIVE LEGAL STUDIES
Factors Determining the Limits of Legal Integration
Pavlova N.G.
Abstract

The article is devoted to the study of the factors determining the boundaries or limits of legal integration in the modern globalizing world. All historical experience shows that the boundaries of legal integration have limits beyond which it loses its rationality and necessity. Legal integration is both a condition and a consequence of globalization processes. Capital is cosmopolitan, rational and requires free promotion of goods, services and labor, and law in modern national legal systems reveals both rational qualities and irrational characteristics connected with socio-cultural traditions and peculiarities. The author outlines the following factors that determine the limits of legal integration, highlighted by the processes of globalization: the political factor connected with the state (its essence, organization and regime of power). The fact is that globalization, primarily economic, is an objective process, it is not formed according to the plan, but the essence, form, functions of the state are the subjective choice of a nation, the ruling elite, that chooses the state's course towards harmonization and approximation of national legislations, or to closeness, protecting their legal identity. And this dictates the limits of legal integration; the social factor that determines the quality and maturity of civil society, the level of its civilizational development, as well as the system of protecting the rights of the individual; and, finally, the legal factor connected with deep legal traditions, beginning with the peculiarities of legal technique and ending with the peculiarities of legal consciousness and attitude to the law. As a result of the study, the author comes to the following conclusion: socio-cultural characteristics in all spheres of state and public life (political, economic, social) accumulate national and legal differences in law, defining its specificity and dissimilarity, which impedes modern processes of rapprochement and unification by establishing it limits. In this situation it is necessary to study and evaluate it objectively, carefully, in the interests of ensuring both nationally-special and integrative-legal principles in the general historical process of legal development.

RUDN Journal of Law. 2018;22(2):172-195
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The Implementation of Islamic Law: the Problems of Changing of Legal Consciousness and Legal System of Russia
Serova O.A., Niyatbekov S.A.
Abstract

The introduction of Islamic banking in the Russian financial sector raises issues related to the development of legislation, the adaptation of the principles of partner banking to the current rules of lending and investment, the problem of perceiving norms based on a different legal doctrine. The tools of Islamic banking have significant socio-economic advantages in comparison with traditional lending and investment structures. However, the existing opposition of Islamic values to the traditions of Western culture and legal doctrine may have a negative impact on legal awareness, will create a threat to preserve the integrity of Russia's legal system. The purpose of the article is to identify problems that impede the introduction of the principles of Islamic banking in the national legislation. While preparing the article, the authors used an integrative approach to law that involves understanding of legal institutions and other social phenomena as complex multidimensional phenomena. Overcoming the exclusively religious approach to the perspective of the implementation of the principles of Islamic law makes it possible to consider legal frameworks and mechanisms of partner banking in terms of adapting successfully tested practices to the activities of economic entities, regardless of national or religious affiliations. The results of the study were the identification of the main directions for improving the national legal theory and practice associated with the reception of the principles of Islamic banking in the Russian legal system. It is necessary to develop the concept of expanding the sources of civil law regulation within the multiplicity of jurisdictions and the coexistence of legal systems within the area of a single sovereign state. The introduction of the model of Islamic banking should be carried out based on secular principles of the organization of banking activities, the integration of the national legal system with the norms of Islamic law. The implementation of the principles, institutions and norms of a different public order significantly different from the tradition that has developed in Russia and should be implemented through a change in the legal doctrine, the understanding by lawyers of the socioeconomic linkage between the principles of Islamic banking and the results of economic activity of persons applying for funding.

RUDN Journal of Law. 2018;22(2):196-214
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CONSTITUTIONAL LAW OF RUSSIA AND FOREIGN COUNTRIES
Freedom of Assembly in the Practice of the Constitutional Court of the Russian Federation
Kolmakov S.Y.
Abstract

Freedom of assembly is a complex institution of human rights containing norms, both legislative acts and mandatory prescriptions of the highest bodies of the judiciary, primarily the Constitutional Court of the Russian Federation. Since the adoption of the Federal Law No. 54-FZ of June 19, 2004, "On Meetings, Rallies, Demonstrations, Processions and Picketing," the Constitutional Court of the Russian Federation has issued about two dozen different decisions on the most important issues for public life in organizing and holding public events. Analysis of these decisions is an actual problem, since without their understanding and systematization it is difficult to regulate social relations related to such a fundamental political right as freedom of assembly. This article is devoted to the analysis and systematization of the entire practice of the Constitutional Court of the Russian Federation on freedom of assembly. To date, there are some works devoted to the analysis of some decisions of constitutional court proceedings. The most complex overview of them is an article by T.M. Khramova in which the decisions of the Constitutional Court of the Russian Federation for the period 2012-2013 on the verification of the compliance of the Constitution with legislative acts that toughen the freedom of assembly after the protest demonstrations of 2011-2012 are analyzed. In the present work eighteen definitions and decisions for the period from 2003 to 2017 on various aspects of freedom of assembly were analyzed. In particular, issues such as: the duality of freedom of assembly; restriction of freedom of assembly at the level of the constituent entities of the Russian Federation and restriction by regulatory legal acts of the President of the Russian Federation; ban on holding public events in certain places; specially designated places for public events; giving notice of a public event on public holidays; coordination of the time and place of the public event; regulation of picketing; prohibition of preliminary agitation of a public event prior to its approval; concealment by participants of their persons at public events; stop picketing by delivering to the police station to protect against the threat to life and health; responsibility for participation in an unsanctioned rally; prohibition to be the organizers of public events for persons who have committed separate offenses or crimes; responsibility of the organizer for exceeding the number of participants indicated in the notification for holding a public event; administrative and civil liability of the organizer of a public event for the harm caused by the participants; the limitation period for bringing to administrative responsibility for violation of legislation on public events; the amount of administrative fines and penalties for violation of legislation on public events; the imposition of a fine for violation of legislation on public events below the lowest limit; criminal responsibility for the repeated violation of legislation on public events.

RUDN Journal of Law. 2018;22(2):215-248
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INTERNATIONAL LAW
Trends of Development of the Modern International Justice
Orlova E.S.
Abstract

The article is devoted to tendencies of development of modern international law and the international justice authorities. Globalization of the modern world and the interaction of States at all levels: political, economic, commercial, educational, and others - determines the relevance of the article. The interaction leads to conflicts and disputes between States, between States, legal and physical persons, between legal and physical persons from different countries, they require resolution at the international level. The increase of number of international contacts is followed by the increase of conflicts between the parties and, respectively, the number of international judicial processes. International law and the international judicial bodies play a special role in solving the problems of the peaceful settlement of international conflicts. Certain trends characterize the current stage of development of international law. These are diversification and fragmentation resulting in the proliferation of international judicial bodies. Strengthening the rule of law in international relations is the main positive point of the main trends in international law. The sphere of international relations, which are not covered by international law, are reduced. The main negative aspect of modern tendencies in the field of international justice is: the possibility of multiple interpretations of international law, especially the regional courts, as well as increasing the risk of issuing conflicting, sometimes inconsistent, decisions of different international judicial bodies. The possibility of finding a forum shopping is a negative consequence as well. This creates a legal conflict, delays, problems with recognition of international judicial bodies, their jurisdiction, for failure to execute court decisions. This leads to a reduction of efficiency of activity of international courts in General. The main task of modern international law is to overcome or mitigate conflicts of jurisdictions of the various international judicial bodies, as well as to set the stable matches between international courts and the enforceability of their decisions. Studies of the leading Russian and foreign lawyers play an important role for overcoming contradictions in the sphere of international law and the activities of international judicial bodies. Scientists note in their works that the modern trends of development (diversification, fragmentation, proliferation, imperativity) is an objective phenomena, they are caused by the development of pluralism of the modern world.

RUDN Journal of Law. 2018;22(2):249-268
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JUSTICE IN RUSSIA AND FOREIGN COUNTRIES
Arbitration (Arbitral Tribunal): History and Legal Nature
Kasa I.
Abstract

Since the ancient times, arbitration has been considered as an institution of peace and justice. Rene David noted that the essence of arbitration was not to maintain the rule of law, but to ensure harmony between people. Arbitration is a society-oriented institution of dispute resolution. However, the history of this institution shows that the legal regulation of its activities always depended on the state. Currently, there is no generally accepted definition of arbitration, although some legal acts both international and national nature reflect attempts to give a legal notion of this institution. At the doctrinal level, there are four established approaches to arbitration: contractual, procedural, mixed and autonomous. The author of this article examines the legal nature of arbitration in a historical aspect, starting with the countries of the Ancient World and Medieval Europe. An attempt has been made to compare the history, legislative, organizational and legal bases of arbitration in Russia and Switzerland. Despite the differences in the traditions of arbitral tribunals in these countries, this comparison is quite correct for the author. In Switzerland, arbitration (the arbitral tribunal) has a fairly long history, and the legislative regulation of its activities is devoid of internal contradictions. In addition, the Swiss legislator promptly makes changes in regulatory legal acts to provide more favorable conditions for arbitration proceedings to the disputing parties in order to attract to Switzerland commercial organizations seeking to resolve their conflicts in this country. Since 2012 some changes in the law on arbitration have come into force in Switzerland, and new Rules of arbitration have been adopted by the Swiss Chambers of Commerce. In contrast to Switzerland, in Russia the first legal acts in the field of private commercial arbitration were enacted only after 1990. The Russian legal concept of commercial disputes resolution today partially reflects the concept of Soviet arbitration, where it means state arbitration. In the Russian Federation till now, there are arbitration state courts. However, the subject of this study will be a different arbitration, the creation of which is provided by Federal Law No. 382 of December 29, 2015 "On Arbitration (arbitration proceeding) in the Russian Federation". In accordance with this law, the term "arbitration" may have at least two meanings. This term, on the one hand, refers to a procedure or method of dispute resolution, on the other - an authority or institution that resolves a dispute and makes a decision on it. The new law on arbitration provides definitions of arbitration, arbitral tribunal and arbitration institution, but at the same time contains many contradictions with the current legislation. The author makes a well-founded conclusion that arbitration is a private legal method of dispute resolution, whose decision is mandatory for the parties that apply to it, and by regulating its activities, the Russian legislator is trying to create a favorable environment for the resolution of such disputes. At the same time, the Federal law of December 29, 2015 provides for the dependence of arbitration (arbitral tribunal) on the state.

RUDN Journal of Law. 2018;22(2):269-288
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La tradition française de l’arbitrage
Zhallamion K.
Abstract

Roman rules and thus devoted the fact that the arbitration is based on the will of the parties. But at the same time France gradually forged its own model, which came in particular from the fact that the arbitration was submitted to the appeal to the Parliament, institution by which the king controlled justice and asserted his position of sovereign from the Middle Ages. In the French tradition of arbitration, a first break occurred in the Sixteenth century, when Chancellor Michel de L'Hospital wanted to make binding arbitration between merchants and members of the same family, to preserve their good relations. Judges who saw their jurisdiction reduced did not accept it and arbitration became one of the means of the struggle between the king and his judges, a struggle that arose from the wars of religion and worsens in the Seventeenth and Eighteenth century. A second rupture then occurred during the French Revolution. It was then a question of rendering the exercise of justice to the citizen and the revolutionary legislator developing the arbitration, which also remained the means for him to divert the parts of the traditional justice, whose power was wary. Finally, the arrival of Napoleon Bonaparte in power and the Code of Civil Procedure marked a third break: the Emperor then profoundly reformed the law as justice and confidence in this institution, organized as the best possible, was restored. Arbitration was therefore rejected at the margin, as a mode of dispute resolution lower in quality and not having all the guarantees of good justice. It was only with the revival of international trade in Europe at the end of the Nineteenth century that arbitration regained its utility, the favor of political power and the favor of judges.

RUDN Journal of Law. 2018;22(2):289-306
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REVIEWS OF SCIENTIFIC PUBLICATIONS
The Study of Soviet and Post-Soviet Statehood as a Single Historical Process. Book review: “Soviet and Post-Soviet State and Law (Comparative Legal Study)” by M.N. Marchenko (Moscow: Prospekt Publ., 2017)
Ekimov A.I.
Abstract

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RUDN Journal of Law. 2018;22(2):307-313
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