No 4 (2016)

The article observes the problems of understanding of legal hermeneutics and doctrinal interpretation. The author concludes that the issue of interpretation of the law has already developed into the thematic framework of the general theory of law and state, and now is a subject of a specific applied science - legal hermeneutics, which has different ways of interpreting the law. The author focuses of the definition of the object of doctrinal interpretation and its types. After carrying out the analysis the author concludes that the doctrinal interpretation of the objects is very diverse and does not mean only interpretation of the law. Almost all the elements of the legal system can be subjects to scientific analysis and forecasting. In contrary to the opinion affirmed in the literature on the theory of law and state that the doctrinal interpretation is a kind of informal interpretation of the law, the author makes a conclusion that the doctrinal interpretation can be official, unofficial and officious i.e. it can have the semi-official character, such as the conclusion to bills. The author considers that despite the fact that in modern Russia the doctrine is not recognized as an official source of law it has a tremendous impact on the legislator, in particular, his legal mind, his psychology foundations. The best samples of scientific doctrines presented in the first chapter of the Constitution. E.g. it is Montesquieu’s theory on the separation of powers, idea of the federal structure of the Russian state, ideas of a secular and democratic state, which withstood a major test of time. This is idea of Lorenz von Stein of the social character of the state, too. After considering the various approaches to understanding the sources of law the author comes to the conclusion that if the interpretation of the results is prepared by a famous legal scholar, is set out in the field of a recognized theory, a certain concept, the legal paradigm, it must be recognized as the legal source and one needs to refer to it in resolution of legal problems in the administration and courts of various levels.

This article analyzes of A. Ross's theoretical conceptualization of the sources of law and their classification which is considered as an important part of Ross's concept of the validity of law. A. Ross states that the theory of law should be based on the principles of empiricism and thus the validity of the law can only be discovered through an empirical study based on a synthesis of psychological and behavioristic views. Such study means analyzing the practice of the courts (and other authorities administering the law) and finding both consistency and predictability in the behavior of the judges and a certain normative ideology, which governs and motivates spiritual life of the judges and in fact animates the courts. A. Ross argues that it is the only possible way to comprehend and predict the actions of the courts, which is crucial for discovering valid law. A common normative ideology, the ideology of the sources of law, is present and active in the minds of the judges and determines their way to discover a directive decisive for a certain legal dispute and formulate a rule on which decision will be based. Hence, A. Ross’s conceptualization presupposes that “sources of law” should be understood as the aggregate of factors influencing the formulation of the rule. This influence can vary depending on the degree of objectification of various types of source: some sources provide a ready formulated rule, while the others provide only material and inspiration. It also focuses on the concept of the tradition of culture which is considered as both a direct source of law and a significant factor influencing the legal system, the legal consciousness, the interpretation of law and the administration of justice.

In 1946, the Nuremberg trials established the legal end of the Second World War. Gross and massive violations of human rights in Europe were a powerful incentive to the establishment of effective guarantees for fundamental human rights at the regional level (the Council of Europe). International legal obligations of the Russian Federation in connection with its participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms require the state of execution of judgments of the European Court of Human Rights issued in respect of the Russian Federation. Human rights values forming the basis of the Constitution of the Russian Federation and the European Convention for the Protection of Human Rights and Fundamental Freedoms do not come into conflict with each other in the force of constitutional provisions which cannot be opposed to each other. The implementation of the European Convention for the Protection of Human Rights and Fundamental Freedoms as an international treaty could not be accompanied by the discretion of the state in relation to the binding nature of judgments of the European Court of Human Rights. Attitude towards the legal positions of the European Court of Human Rights should be based on the principle of respect for the practice of intergovernmental bodies for the protection of the rights and freedoms of the individual. First, the state recognized the jurisdiction of the intergovernmental body on protection of the rights and freedoms of the individual, obliged to consider the practice of this body in the matter in respect of the state concerned. Second, a state may not plead impossibility of performance of decisions of the intergovernmental body for the protection of the rights and freedoms of the individual, issued upon review of individual complaints, or otherwise ignore the undertaken international obligations. At the same time, admitting the possibility of state interference in the exercise of those rights and freedoms, the European Convention for the Protection of Human Rights and Fundamental Freedoms requires the state some discretion to regulate the rights and freedoms of the individual. Evolution of the European Court of Human Rights as an institution of international protection of the rights and freedoms of the individual should be based on the recognition by member States of the Council of Europe the principle of respect for the practice of the European Court of Human Rights.

24th of November 2016, the President of Russia submitted to the State Duma of the Russian Federation’s Federal Assembly the draft Federal constitutional law «On introducing amendments to the Federal constitutional law «On the Constitutional Court of the Russian Federation». The bill proposes a new form of the Constitutional court judgment regarding the results of consideration of the case about the verification of constitutionality of a statutory act of public authority or a treaty between bodies of public authority, - the decision to declare the statutory act or the treaty or individual provisions of them corresponding to the Constitution in the interpretation given by the Constitutional Court of the Russian Federation. In the authors’ opinion, such a new form (and new legal nature) of the Constitutional Court judgment marks a historic turn of the Russian state policy towards the development of case law, strengthening the place and role of judicial precedent and lawmaking. This means that other (possible) interpretation will not be taken into account by courts, thereby, the judicial system will become more manageable, and decisions taken by courts - in terms of possible interpretations of the Basic law - more predictable. The article also explores the concept of «judge-made law», which in connection with the submission of the draft Federal constitutional law, takes on new meaning and new legal nature: firstly, the judge-made law, as one of the most common concepts in modern Western European jurisprudence and the Anglo-American common law, in fact, starts its development in Russia, secondly, the classic concept of the judge as an «implementer» of the law-making functions of the court right from the beginning starts to be distorted in Russia, because the right to be «interpreter» (commentator) belongs only to the Constitutional Court of the Russian Federation, the lower units of the judicial system no longer can, but are obliged to follow the position of the Constitutional Court of the Russian Federation. In any case, according to the authors, the development of judicial precedent and lawmaking is a significant positive step for the development of the legal system of the state. The question is debatable: what to give preference in case of interpretation of the regulation to - explanation of a will of the legislator which he wanted to express, or to the text of the regulation. The will of the legislator only so makes the law as far as it is expressed in the regulation as there are requirements to the acts, uniform in the territory of the state, establishing the rights and obligations.

This article is devoted to problem aspects of indemnification which resulted from actions (inaction) or decisions of bodies of public administration and their public officials. The author analyzes system of standard regulation of these relations, the developed court practice, revealing features of realization of the right for compensation of the harm done by the state as a result of its administrative and jurisdictional activity. The special attention is paid to debatability of a question of the legal nature of the adjustable relations, a problem of definition of a standard basis of the indemnification caused by the state within administrative process including a problem of applicability of all ways of protection provided by the civil legislation at realization of the right for indemnification caused within administrative process. Questions of establishment of illegality and guilt at infliction of harm as a result of implementation of imperious actions (decisions) are analyzed, and also questions of a preyudition, admissibility of justification within claim production of illegality of the decisions of standard and substandard character made by public administration. Conclusions about the insufficient clearness of legal regulation of the studied question are presented to end, the assessment is given to debatable aspects of a perspective and tendencies of development of institute of compensation of the harm done by the state, ways of improvement of the current legislation and law-enforcement practice are offered. The author offers two ways of the legislative solution of the delivered problem: recognition of all indemnification methods provided by the civil legislation within administrative legal relations by means of more accurate general legislative specifying on admissibility of all sales opportunities of this right in relation to indemnification caused by actions of public administration or forming of own full administrative and legal regulatory base of compensation of the harm done by the state as a result of its administrative and jurisdictional activities. Regardless of the chosen way of enhancement of the considered institute, its updated standard basis shall consider positive achievements of law-enforcement practice, especially - the progressive legal line items created in the course of interpretation of disputable regulations by the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation. Audit of the legislation regarding a regulation of indemnification shall promote not only to refining of the place of this institute in system of legal regulation, but also to provide proper protection of the appropriate right.

The material focuses to the 80th anniversary of Doctor of Law, Professor of the Department of the Theory of Law and State, Law Institute of the People’s Friendship University of Russia G.I. Muromtsev, a specialist in the filds of theory of state and law, law of developing countries, comparative study of legal cultures.