20 (4)
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2020
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catalogue – 43669
ANTINOMIES
Until 01.01.2019 - Scientific Yearbook of the Institute of Philosophy and Law of the Ural Branch of the Russian Academy of Sciences

ISSN 2686-7206 (Print)

ISSN 2686-925X (Оnlinе)

Issue materials

Law

Friedrich August von Hayek's Conception of Law: Between Liberal Ideology and Social Theory

Raab Ruslan

Abstract. The article is devoted to the re-problematisation of F.A. Hayek's legacy in philosophy of law and social theory. Taking as an example the works of SPSU professor I.Y. Kozlikhin, and some other works about Hayek's theory of law, the author demonstrates several inadequacies of the current literature on Hayek's legal philosophy. In criticizing these highly debatable approaches, the author describes multiple but rarely considered nuances of Hayek's conception of law, which seem to be necessary for adequate understanding of his works. In the author's view, only these details allow to cast some doubt on stereotypes about Hayek as a sort of “liberal ideologist” and unfold the true original potential of his philosophy. The main hypothesis of the article is that the key to this original potential lies not in Hayek's theory of freedom and market, but in his fundamental epistemological views. The ideal of freedom is not enough to discriminate between what is “just law” and what is not in hayekian theory. Only by the means of Hayek's epistemology we can separate law as “rules of just conduct” from other types of social institutions in his theory. This separation is based on broader epistemological separation of “simple” and “complex” phenomena in Hayek's theory of knowledge, which is reflected in his distinction between “organization” (Taxis) and “spontaneous order” (Kosmos). Since only the last of them represents a «complex phenomenon», it means that only a system of special meta-rational rules of conduct can provide an epistemically restricted social actor with an ability to act effectively in such a complex and rationally unknowable social structure. It is argued that only this “technical” capacity of meta-rational just law can be seen as the true basis of Hayek's theory of law. Neither hayekian theory of freedom, nor histheory of market can shed light on the Hayek’s most important and original contribution in the domain of legal theory. It is Hayek's epistemology that can be seen as the ultimate foundation of his conception of lawn.

Keywords: Friedrich August von Hayek; theory of law; law and institutional values; law and social order; epistemology.

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Law

Formation of the Institution of Mediation in Russia and Abroad

Tarsheva, Mira ,
Tolkunova, Natalia

Abstract. The resolution of legal conflicts with the participation of a mediator is a resource mechanism for saving time, money and effort of the disputing parties in the process of reaching a consensus. Conciliatory practices involving a third impartial party have been known for a long time in many countries. This article is devoted to a retrospective analysis of the process of the restorative justice development and the formation of the institution of mediation. The philosophical prerequisites of mediation in the ancient and medieval periods and in modernity are considered. The author focuses on the historical and legal development of meditative practices both in Russia and abroad. In more details, mediation is considered as an alternative way of resolving criminal conflicts, revealing its essential characteristics in the field of criminal justice. The author concludes that the existing rules of criminal procedure law contain the prerequisites and resources that are necessary for the implementation of mediation in the domestic criminal proceedings. There are three models of mediation depending on the stage of its application: prior the initiation of the criminal case; after the initiation of a criminal case; the penitentiary model of mediation. The retrospective analysis of the process of establishing the institution of mediation in Russian and foreign law draws attention to the fact that the origins of conciliatory practices with the participation of the mediator had existed in ancient society. At an early stage of development, restorative justice was reflected in the ideas of Mayevtics; during the Middle Ages, media practices were practically not applied. The period of modernity was more fruitful; it “revitalized” the restorative justice, finding its reflection in the humanistic ideas of writers and philosophers. Philosophical ideas of the modernity deeply influenced the historical andlegal establishment of the institution of mediation in Russia and in foreign countries. At the present stage of development, mediation is used as an alternative procedure for resolving a dispute. The methodological basis of the work is formed by the universal (dialectical-materialistic) methodology in combination with other general scientific methods of cognition (analysis, synthesis, induction, deduction, systemic method, etc.); special legal methods: comparative legal, sociological, legal dogmatic, etc.

Keywords: mediation; restorative justice; intermediation; conciliatory practices; criminal proceedings; alternative way to resolve criminal conflict.

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Law

Duplication and Originality in Establishing Regional Categories of Specially Protected Natural Territories in Russia

kiel, Julia ,
Syomin, Pavel ,
Sinitsina, Valeriya

Abstract. In empirical studies of environmental law and policy, an important place is occupied by the issue of the underlying mechanisms that determine the relationship between territorial state structure and environmental performance. Duplication is among such mechanisms in the federations, including Russia. This paper addresses a specific aspect of the problem, i. e. the duplication in the establishment of regional categories of specially protected natural territories. The goal of the research is to determine the combination of originality and duplication among regional categories and to provide a legal interpretation of the observed phenomena. The objectives are (1) to collect a database of legal information about all regional categories; (2) to compare each federal category with each regional category and to find out whether the given regional category is original or duplicated; and (3) to aggregate the results of the comparison and make their legal interpretation. The main method of the study is a comparison made with a special quantitative technique. Additional methods are analysis, synthesis, induction, deduction, abstraction. Also, a few methods of statistical data analysis are used. As a result of the research, it is determined that duplication among regional categories in Russia often prevails over originality, and the median level of similarity between federal and regional categories is higher than the normal level of similarity. Most likely, part of the duplication results is explained by the fact that regional legislators do not sufficiently regulate the specifics of regional categories. Duplication has negative and positive consequences; i. e. it could result in lax legal protection of valuable territories,but it also could act as a compensatory mechanism overcoming the drawbacks of the federal regulation, and as a safeguard against negative changes of federal legislation. Thus, it may be proved that duplication could be unreasonable or justified. The regional legislators should avoid unreasonable duplication and regulate in detail the specifics of regional categories.

Keywords: specially protected natural territories; categories of specially protected natural territories; kinds of specially protected natural territories; governance types of protected areas; comparison of categories; federalism; regional legislation; duplication; statistical analysis; empirical legal studiest.

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Political
science

Transitional Justice as a Concept and Practice Through the Prism of Political Science

Vakhrusheva, Evgeniya

Abstract. The concept of transitional justice occupies an important place in the study of the problem of peace, conflict resolution and social cohesion in the so-called transitional societies, being an integral part of contemporary mainstream political discourse. Within the framework of this discourse, the practice of transitional justice is positioned as necessary condition for overcoming the legacy of the repressive regimes of the past and achieving public consensus in fragile post-conflict societies, which were once highly polarized and, as a result, characterized by a weak common civic identity. The main body of research is devoted to the analysis of various aspects of transitional justice; by default, it is considered as taken for granted. The research is limited to the analysis of its particular problems and contradictions not questioning its relevance to the specifics of the tasks it was designed to solve. As a result, a fairly consistent picture has emerged that depicts a movement of societies once torn apart by civil and military conflicts in a single direction – towards democracy and market economy, a movement where transitional justice procedures perform the most important functions of reconciliation and restoration of violated rights, contributing to the achievement of basic social cohesion. At the same time, the analysis of specific cases of transitional justice implementation in a broader socio-political context provokes doubts in the idea that the weaknesses of transitional justice, identified and described by mainstream theories, are not of structural nature, but rather particular and situational ones. In this regard, there is an urgent need for a comprehensive consideration of the phenomenon of transitional justice involving the methodology of critical analysis. This article proves that transitional justice could not be seen as an adequate responseto the complex challenges facing contemporary societies burdened with acute socioeconomic and political contradictions. As a part of a global neoliberal project, transitional justice solves only specific problems, and is rather aimed at consolidating the neoliberal status quo. Transitional justice is not a reliable way to achieve social cohesion in postconflict societies, destabilized by hidden and overt tensions. The model of social cohesion it produces is a very fragile construct built on a negative image of the past and based on the rent principle of benefits and privileges distribution by the beneficiaries of the new regime. Solving the structural problems and contradictions that actually underlie the conflicts and instability in the so-called societies in transition, require not just a revision of particular practices and institutions, but a radical reformatting of the global political paradigm, which should be centered around the concept of socio-economic justice.

Keywords: transitional justice; social cohesion; neoliberalism; socio-economic justice; politics of memory.

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Political
science

The Image of the “Enemy” in Political Discourse of Nascent Spanish Conservatism

Vasilenko, Yuri

Abstract. The article is devoted to the transformation of the image of “enemy” in the emerging conservative political discourse in Spain in the last third of the 18th – first half of the 19th centuries. Comparing the image of “enemy” in the political discourse of traditionalists and liberal conservatives, the author shows that the first is based on religious and philosophical foundations, on which the political ones were layered with great difficulty at the beginning of the 19th century; the second is based on purely political ones. For the Spanish traditionalists, “enemies” are primarily the supporters of the socalled “false philosophy” (non-Catholics and non-Spaniards) who were followers of the British-French Enlightenment. Liberal conservatives who in principle abandoned any military connotations of the traditionalists interpreted the “enemy” exclusively in civil legal terms as political opponents from competing or allied structures (parties and party factions). Within the framework of traditionalism, the Carlists become a kind of “driver” for the transformation of the image of “enemy” who, in the conditions of intra-dynastic wars between Catholics and Spaniards, were forced to begin giving their discourse a purely political sound.

Keywords: image of “enemy”; conservative discourse; traditionalism; liberal conservatism; Carlism; Spain of the XVIII–XIX centuries.

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Philosophy

Knowledge Logic and Algebra of Formal Axiology: a Formal Axiomatic Epistemology Theory Sigma Used for Precise Defining the Exotic Condition Under Which Hume-and-Moore Doctrine of Logically Unbridgeable Gap Between Statements of Being and Statements o

Lobovikov, Vladimir

Abstract. For the first time, in the formal axiomatic epistemology theory Sigma such a theorem is formally proved which means (in the precisely defined interpretation) that under the condition of knowledge a-priori-ness, a statement of formal-axiological equivalence of moral-evaluation-functions is logically equivalent to logic equivalence of corresponding statements of being. For the first time it is shown that this theorem undermines universality of the conception of Hume and Moore. A precise definition is given for the formal axiomatic theory Sigma, which is a result of logical formalization of the universal philosophical epistemology; and a relevant interpretation of this formal theory is submitted. The formal proof of the theorem can be examined by readers step by step as it is accomplished in accordance with the formalism standards.

Keywords: formal-axiomatic-epistemology-theory; a-priori-knowledge; two-valuedalgebra-of-formal-axiology; formal-axiological-equivalence; moral-evaluation-function; Hume-guillotine; naturalistic-fallacies-in-ethics; fact-value-dualism.

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