Vol 27, No 2 (2023)


Deviated State: Research Methodology

Vlasenko N.A.


In this article the author analyzes the current domestic state studies, trends and features of its development. It is concluded that legal science practically does not study the so-called blunders in state policy, ineffective strategics, failures of reforms and programs. Classical state science and its representative Aristotle called this a deviation in a state development and used the concept of a deviated (deviating) state . It is proposed to study the causes, types and forms of deviations. The author believes that this approach will allow a deeper analysis of the emerging negative trends and patterns in the European statehood development. The current global crisis, provoked by the situation in Ukraine and around it, only sharpens deviations in the European states’ development. It is emphasized that deviated state theory needs a proper development in the legal science. The problem of the state bodies activities imitation shall be central in the future theory. The author believes that many components of modern statehood do not essentially fulfill their tasks and functions, or, if they do, then partly. The relationship between society and the state is analyzed through the prism of alienation. The state is a product of society; it was created for society and is entirely indebted to it. Legal science must develop criteria for remoteness of the state from society to define the degree of alienation. Within the framework of negative trends, selectivity is also considered as a feature of modern statehood. The author understands selectivity as a special form of coercion. Such states do not carry out heavy repressions; there is a certain point of revenge on individuals, groups, organizations, etc. Among the deviations, the author refers to ignoring the role and importance of social organizations, state’s withdrawal form international human rights organizations, etc. The article ends with the author’s appeal to reasonableness as a condition for resisting deviations. Reasonableness must form the basis for statehood and legal reality. The state, its institutions must be the product of rational human activity. Mankind has long been determined in its own values, which include the state and its companion - law.

RUDN Journal of Law. 2023;27(2):257-272
pages 257-272 views

On the scientific scope of the “legal drafting” concept

Kozhokar I.P.


The article attempts to define the content of “legal drafting”, as well as its place and role in the categorical apparatus of the theory of law. It investigates the main scientific approaches to the definition of the concept and classification of types of legal documents technology. The paper determines its axiological significance through a functional methodological approach, the impact on the effectiveness of legal regulation, as well as the place and role in the categorical apparatus of the theory of law. The findings of the research show that the terminological feature of the concept of “legal drafting” is described through a number of aspects. First of all, this term performs the function of a “framework concept” and is often subjected to erroneous idealization. At the same time, the term “legal drafting” has a polysemantic character and, therefore, enjoys a poly conceptual scientific maintenance; basically, it refers to the instrumental part of legal activity. The research concludes that the legal drafting technique occupies a special place in the categorical system, which is primarily due to the difference in approaches to its interpretation, and the large volume of its content.

RUDN Journal of Law. 2023;27(2):273-287
pages 273-287 views

Issues of foundations and criteria of law: criticism of the theory of social rules and conventional rule of recognition in “early” R. Dworkin’s doctrine

Kasatkin S.N.


The article investigates the doctrine of an American jurist, Ronald Dworkin, presented in the essay “Social Rules and Legal Theory” (1972) and considered as a stage in his large-scale polemics with legal positivism. In this doctrine the author criticizes the theory of “social rules” and the conventional “rule of recognition”, which is basic for his opponents. The theory requires an agreed unity of practice and defends the controversial character and moral engagement of normative grounds and criteria of law, their priority and autonomy against community practices. The relevance of the topic is due both to the fundamental nature of the Dworkin - positivists dispute, and peculiarities of the 1972 doctrine, which formed a number of its “cross-cutting” elements. The article is aimed at systematization and assessment of the 1972 doctrine, relies on the texts by its author, his opponents and researchers, and uses various tools, primarily the ideological and historical method, focused on explication of views and issues developing in the history of thought. The study results are generalization of original components of R. Dworkin’s 1972 doctrine, its localization within the dispute between the author and positivists and discerning its ideological and historical implications. Summing up the article emphasizes a stimulating role of the 1972 doctrine for evolution of the rival approaches, as well as its potential for the philosophy of law, associated with R. Dworkin’s problematization of a link between normativity and facticity in law, linguistic-analytical idea of a rule as a practice, and conventionalist account of foundations of law which decenters normative disagreements.

RUDN Journal of Law. 2023;27(2):288-308
pages 288-308 views

Justification of the right to subsistence in contemporary Western philosophy: challenges and solutions

Shaveko N.A.


The article discusses the views of modern Western philosophers on the isuue of socio-economic human rights, including the right to subsistence. The purpose of the work is to answer the question of whether the right to a decent life is morally justified. The work was carried out within the framework of the analytical approach and its inherent methodology. The author identifies several types of arguments expressed in Western literature against the right to a worthy existence. They are 1) actual impossibility of guaranteeing these rights; 2) denial of non-contractual positive obligations that could correspond to this right; 3) problematization of the imperfect nature of positive obligations corresponding to this law. It is shown that these objections in themselves are not sufficient to reject the right to a worthy existence, but they show that at the abstract level this right cannot be justified only in a “negative” sense, that is, as the right to which only the negative duties of others correspond. The author proposes to consider options for solving the problems that gave rise to discussions concerning the right to a dignified existence, outside of human rights discourse. Thus, the moral basis for the fight against poverty and other features of an “unworthy” existence can be formulated by applying to the public sphere (by analogy) the categories of civil law - condiction, tort and contract, as well as taking into account the classical conditions for the onset of legal liability. Moreover, the moral justification for securing some “decent” level of existence is achieved by referring to the general principles of fair distribution of material wealth (regardless of what is considered a “decent existence”). One of these principles is the Rawlsian principle of difference, which does not depend either on the idea of a person as a “moral agent” who requires some kind of minimum (“worthy”) level of well-being, or on understanding of the human rights nature.

RUDN Journal of Law. 2023;27(2):309-320
pages 309-320 views

Concession policy of the Soviet state: implementation mechanism

Nemytina M.V., Krasnov A.B.


The article analyzes the experience of the concession policy implementation by the RSFSR and the USSR during the 20s of the twentieth century and the approaches used in its framework, which allowed solving simultaneously a wide range of tasks related to the rise of the domestic economy and overcoming foreign policy isolation. This experience of the Soviet state can be used to solve the challenges the Russian Federation is facing today. The authors substantiate that the concession policy of the Soviet state was a rationally constructed mechanism able to solve a number of tasks. 1) Creation of foreign concessions in the Soviet country contributed to withdrawal from the diplomatic blockade declared by Western countries. 2) Through the concession policy the obligations of the Russian Empire to foreign investors were renewed in the conditions of a socialist economy. 3) By creating concessions the Soviet government headed by V.I. Lenin attracted the material and technological resources of the European countries and the USA for the development of the economy of the Soviet country. 4) At concession enterprises models of industrial relations with a high level of labor organization and living conditions of workers were formed at the expense of foreign investors, which then had to be introduced everywhere. 5) The concession policy covered the national suburbs and contributed to unification of the economic potential of the republics as part of the USSR. The analysis of the legal regulation of concession relationships carried out in this article gives reason to suppose that the concession policy of the Soviet state should not be reduced to the NEP because its implementation started earlier. In fact, it was launched with the adoption of the Decree of the Council of People’s Commissars of November 23, 1920 On General Economic and Legal Conditions for Concessions and within its framework a range of tasks that went far beyond the economic recovery envisaged by the NEP through private law principles was solved. Attention should also be paid to the constitutional nature of the regulation of concession legal relations, which was determined by the “Treaty on the USSR Foundation of 1922” and the Constitution of 1924.

RUDN Journal of Law. 2023;27(2):321-337
pages 321-337 views


Delegated rulemaking by the Central Election Commission of Russia

Lopatin A.I., Malkarov A.I.


The issue of systematization of legislation is quite relevant and the task of solving it is part of the state legal policy. At the same time, the solution of the above problem is impossible in isolation from the study of a number of issues affecting both the theoretical and practical aspects of lawmaking and law enforcement activities. For example, one of these key issues is the hierarchy of normative legal acts, including those issued by state bodies of the Russian Federation. The issue of standard-setting powers of certain state bodies is quite controversial. The article investigates the practice of implementing the institution of delegated legislation in the Russian Federation on the example of the practice of delegated rulemaking of the Central Election Commission (CEC) of Russia. The study consistently considers issues of the constitutional and legal status of the Central Election Commission of the Russian Federation, including regulatory powers related to it. Various points of view relevant to the scientific community on this issue have been outlined. At the same time, the authors proceed from understanding that rulemaking powers are integral attribute properties of the constitutional and legal status of the CEC of Russia. Based on the tasks set, the issues of the forms of regulatory legal acts of the CEC of Russia as sources of constitutional law are investigated. The authors indicate the need to diversify acts issued by the CEC of Russia within the framework of exercising its direct powers, with acts issued within the framework of delegated rulemaking. In this regard, special attention is paid to legal regulation regarding the new electoral procedure - remote electronic voting. Given the enormous importance for the state and its obligation to ensure transparency and legitimacy in electoral procedures, it is clear that their legislative regulation should be adequate to the level of tasks to be solved. At the same time, the authors believe that acts of delegated rulemaking, subject to certain restrictions and requirements, meet the specified characteristics. The methodological basis of the study includes the dialectical method, methods of analysis, synthesis and analogy, as well as formal-legal and comparative legal methods.

RUDN Journal of Law. 2023;27(2):338-353
pages 338-353 views

United States of America and the pandemic: issues of legal regulation in combating COVID-19

Latypova N.S.


The pandemic period in the United States has become a test of the strength of many state mechanisms, raised the question of the limits of the extraordinary powers of the President and governors and effectiveness of the public health system. The reasons why one of the most prosperous countries in the world has become the most affected state by the pandemic largely lie in the sphere of public administration system and historically established precedents for expanding the powers of the executive branch in times of emergency. The aim of the study is to identify the foundations of constitutional and legal regulation in combating the consequences of the pandemic in the United States and to trace correlations between peculiarities of distribution of powers in the field of public security and effectiveness of measures to counter the COVID-19 spread. One of the tasks is to identify both advantages and disadvantages of the US political structure in the context of countering the nationwide threat. The historical method of research allowed to determine the specifics of the extraordinary powers of the US President, while the specific legal method was used as the basis for analyzing the structure and powers of legislative and executive authorities along with comparative legal, system-structural and functional approaches. In the fight against the pandemic, the mechanism of public administration in the United States has shown its inability to counter threats of a nationwide nature. In many ways, this situation is explained by peculiarities of the legislative regulation of the healthcare sector, transferred to the autonomous regulation of state authorities, a disparate system of legal regulation of emergency response, as well as the very modest capabilities of the head of state in responding to epidemiological threats. The study allows to conclude that there is a correlation between the features of the public administration system in the United States, its legislative regulation and the negative consequences of the COVID-19 pandemic caused by uncoordinated actions of federal and regional government authorities.

RUDN Journal of Law. 2023;27(2):354-367
pages 354-367 views

The theory of legal restraints: the actual limits of the judge’s lawmaking power from the perspective of the neorealist theory of interpretation

Fatalieva D.A.


The modern methodology of judicial interpretation is characterized by an apology of the realistic style of judicial interpretation. The basic theses of the realistic theory of interpretation are the voluntarism of the author of official interpretation and the lack of the function of a normative text which is different from that attached by the official interpretation. As these theses actually allow the sovereignty of the judiciary, the judicial realism faces a justified criticism. However, representatives of the French legal doctrine deny the tendency to form a new sovereign in the person of the judge and highlight special factors - legal restrains which are due to the configuration of the legal system restrain judges’ reasoning in practice, although they are not normative obligations. The article reveals the main points of the theory of legal restraints based on the works of French scholars in the theory and philosophy of law. Also, since the main tool of the realist theory of interpretation is an empirical approach, the provisions of the theory of judiciary restrains are tested on the example of the international justice practice - the European Court of Human Rights. In fact, we conclude that respect for the principle of subsidiarity and recourse to the European consensus can be seen as examples of legal restrains. As a result of the theory of judicial restrains analysis, the author agrees that although it complements the realist theory of interpretation and can act as a tool for studying political and legal discourse, it has certain limitations. For example, the theory of legal restraints offers no objective criteria for identifying and distinguishing them from the normative obligations of the author of interpretation, and is, in general, descriptive. Moreover, the nature of legal restraints shows that their observance remains at the discretion of the subject of interpretation and, therefore, they cannot completely exclude the possibility of his/her absolute discretion.

RUDN Journal of Law. 2023;27(2):368-382
pages 368-382 views


The concept and features of administrative regulations as a source of Russian law

Nazaykinskaya V.A.


This article is a continuation of a previously published article on administrative regulations as a type of public administration acts. The purpose of this article is to identify the features of administrative regulations as a source of Russian law. It investigates existing shortcomings in the development and adoption of administrative regulations and proposes possible ways of their elimination. The study uses both general scientific and special research methods: analysis and synthesis, induction and deduction, comparative and formal legal methods. The conducted research allows to identify the specifics of administrative regulations as sources of Russian law, to outline the place and the role of these regulatory legal acts in the legal system of Russia. The author gives the definition of administrative regulations, reflecting their most important and essential features. The article studies such negative aspects as the practice of approving administrative regulations, which are codified departmental acts, by simple acts - orders. Also, to date, administrative regulations are not subject to regulatory impact assessment, which is also recognized as a negative phenomenon. The results of the study can contribute to improving the processes of developing and adopting administrative regulations and enhancing the level of legal technology of these regulatory legal acts.

RUDN Journal of Law. 2023;27(2):383-396
pages 383-396 views

Public procurement in Russia: concept and content

Kikavets V.V.


Based on the analysis of foreign and national legal acts, scientific works and research of domestic and foreign scientists, the article substantiates the relevance of the concept “public procurement” and reveals its content. The outcome of the research on public procurement as a system of legal relations allows the author to verbalize its definition. Public procurement should be understood as a system of legal relations where one party is an authorized representative of public authority who purchases goods, works, and/or services at the expense of the relevant budget in order to realize public interest. The characteristic features of public procurement are highlighted, and the most significant functions of public procurement are substantiated, including social, regulatory, reproductive, innovative, stimulating, and cost optimization. The author offers classification of the main subjects of public procurement, involving authorized representatives of public authorities (entities authorized to regulate and control public procurement, to centralize and conduct joint bidding, as well as all customers), business entities (suppliers, contractors) and derivative entities (banks and credit organizations, electronic trading platforms, specialized organizations). It is emphasized that in order to increase the efficiency of budget spending and optimize the financial support of public procurement, a number of derivative entities may be abolished. The article sustains that legal relations in public procurement are subject to regulation by the norms of financial, administrative, and civil law. It notes that legal relations in public procurement regulated by the norms of civil law (contractual legal relations) arise exclusively after the relations regulated by the norms of public law. It outlines the legal characteristic of the revealed legal relations and justifies the necessity of considering the priority of the norms of public law.

RUDN Journal of Law. 2023;27(2):397-420
pages 397-420 views

Public control and supervision in the economy: theoretical and legal justification

Agamagomedova S.A.


In the context of the rapid processes of economy digitalization and integration, the issues of updating the forms and methods of public law impact on economic relations in the new modern conditions naturally arise. Taking into account the fact that control and supervision are traditionally positioned as basic management functions, the issues of substantiating public control and supervision in various areas of managerial influence in general and in the economic sphere in particular are becoming increasingly relevant. At the same time, the literature review allows to speak about the lack of common positions on the issues of structural and functional content of the category “public control and supervision in the economy”. In this regard, the purpose of the study is determined as the need for a theoretical and legal substantiation of the concept of public control and supervision in the economy, its structural and functional content and place in the general system of public administration. The materials for the study are the scientific works of domestic and foreign scientists in the field of public control and supervision, their individual areas (public financial control, public environmental control, etc.). Various opinions on the structural and functional content of public control and supervision in the economy, its individual areas, assessment of the subject composition, goals and mechanisms for implementing such activities have formed the basis for classifying the existing scientific approaches to justification of public control and supervision in the economy. It is proposed to distinguish at least three approaches to such justification: from narrow (public control and supervision as control and supervision of public authorities) to two options for a broader approach (at the national and supranational levels). The latter seems relevant from the point of view of unification of states on economic basis and formation of regional markets for goods and services in the modern economic space.

RUDN Journal of Law. 2023;27(2):421-438
pages 421-438 views


The concept of “insurable interest” in civil law: Key issues of theory and practice

Battakhov P.P., Ovchinnikova Y.S., Moturenko S.M.


The article pays attention to the importance of insurable interest in the modern legal environment. The insurable interest is looked at in relation to the insurable risk; the meaning of the insured property losses is also explained. The article formulates the features for a single concept of insurance contract. In the focus are such features of insurable interest as legitimacy and private (subjective) nature. The author reveals the difference between the objective and subjective sides of the insurable interest and analyzes judicial practice. It is concluded that insurable interest of the subject consists in compensation for property losses, which are not in all cases related to the concept of “damage” and “harm” in civil law. Accordingly, the insurable interest exists insofar as there is a possibility of the occurrence of insured property losses; moreover, the insurable interest is of property nature, which allows us to formulate uniform features of a personal and property insurance contract.

RUDN Journal of Law. 2023;27(2):439-452
pages 439-452 views

The development of an insolvency privilegle for derivatives in German law

Klementyev A.P.


The article outlines the development of insolvency privilege with respect to derivatives under German law in its historical perspective. It traces the evolution of special privilege from the moment when it was first announced in the German insolvency statute (Insolvenzordnung) and came into force on August 1, 1994, up to the moment when legislative provisions securing the functioning of derivatives in insolvency context were amended in response to the 2016 Federal Court of Justice Verdict. This court ruling ended the long-standing consensus on “friendliness” of the German insolvency law to derivatives and other financial transactions. German highest court concluded that contractual clauses on the termination of obligations under derivative contracts in the event of bankruptcy are invalid unless their legal result is identical to the one prescribed by law. This court decision created significant legal uncertainty for recognition of claims under derivative transactions and directly influenced the use of standard master agreement for over-the-counter derivatives. Drafted under the auspices of the German Banking Union (GBU), an organization representing the interests of German financial institutions, German Master Agreement for Financial Derivatives Transactions ( Deutscher Rahmenvertrag fur Finanztermingeschäfte ) provided a contractual framework for the relevant market, and it came under significant pressure. Overall, German insolvency rules were significantly enforced to achieve the enforceability of close-out netting thus expanding the insolvency privilege for derivative transactions.

RUDN Journal of Law. 2023;27(2):453-467
pages 453-467 views


The application of artificial intelligence in the civil proceedings of the People’s Republic of China: theoretical and legal analysis

Rusakova E.P.


The subject of the research of this article is the social relations arising in the process of integrating artificial intelligence technologies into the judicial proceedings of the People’s Republic of China (PRC). The article discusses the legal framework governing this process, as well as the theoretical and legal analysis of the phenomenon of artificial intelligence in the new legal reality. Special attention is paid to the value and essential characteristics of artificial intelligence in justice, its types and components from the standpoint of the methodology of law. Moreover, the objectives, principles, scope and system of the use of artificial intelligence in legal proceedings, as well as measures of state support for this process are analyzed. The research shows that the process of introducing artificial intelligence into legal proceedings is complex and requires serious legal understanding of these technologies in the context of justice administration. The author draws conclusions concerning effectiveness and pragmatism of the process of integrating artificial intelligence into the judicial system of the People’s Republic of China. However, a fully automated process of justice in the courts of the People’s Republic of China can lead to extremely negative consequences for the judicial system, which may cause distrust to the judicial method of protecting rights and reduce society’s commitment to basic socialist values and customs.

RUDN Journal of Law. 2023;27(2):468-480
pages 468-480 views

Judicial interpreting institutionalization in criminal proceedings: European practices and Russian perspectives

Stepanova V.V.


The research studies the institute of court interpreting in several European countries and the prospects of forming the institute of court interpreting in Russia. It bridges the previous studies concerning professionalization of this activity into the new realia and extends into legal regulation, market, and administration. The research raises awareness of the multifaceted process of forming the institute of judicial interpreting to the benefit of civil society. The issues concerning education of interpreters participating in judicial setting, level of language proficiency, qualification, authorization of legal interpreters and translators, their status, rights and obligations, code of ethics and some others inherent to the process of institutionalization are in the focus. It also highlights the grounds and voices prospects for the development of the institute of legal interpreters in Russia. The research methods are divided into theoretical and analytical, comparative, and contrastive and methods of reasoning, evaluation and summarising allowing to balance the material according to the academic aims. The practical relevance of the work rests in unifying and harmonising legal, administrative, and professional aspects of court interpreting institutionalisation within European space.

RUDN Journal of Law. 2023;27(2):481-499
pages 481-499 views


Legal support for the development of sustainable and secure information and telecommunications infrastructure

Belousov A.L.


The relevance of the work is due to the need to adapt regulatory mechanisms to the actively developing digitalization processes. On the other hand, in the context of growing cyber threats and increasing dependence of public relations on information and telecommunications technologies, the directions for the development of legislation that ensure stability and security of the relevant infrastructure are subject to a certain rethinking in the legal aspect. The subject of the study is the legal support for the development of a sustainable and secure information and telecommunications infrastructure. The purpose of the work is to identify key areas for improving legal regulation in the field of functioning and development of sustainable and secure information and telecommunications infrastructure. The study applies methods of analysis, synthesis and comparison, as well as literal and systematic interpretation of the norms of the current legislation in the field of functioning and developing sustainable and secure information and telecommunications infrastructure. Finally, conclusions are formulated regarding the need for the development of legal regulation in this area. The research outlines the specific directions for changing the legal field, which ensure the sustainable development of information and telecommunications infrastructure in the Russian Federation.

RUDN Journal of Law. 2023;27(2):500-521
pages 500-521 views


Review of the scientific and methodological seminar Synergetic Approach in State Understanding: Challenges and Development

Mongush A.M., Nikitina V.S.


On December 15, 2022, the Department of Theory of Law and the State of the Law Institute of the RUDN University held a scientific and methodological seminar on the Synergistic Approach in State Understanding: Challenges and Development. A wide range of people were involved in the seminar: the faculty of the department, graduate students of the department and students of the Law Institute. The work of the seminar suggested personal and remote presence of the participants and observers.

RUDN Journal of Law. 2023;27(2):522-532
pages 522-532 views

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