18 (4)
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2018
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RESEARCH
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The Institute of Philosophy and Law.
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Philosophy

DYNAMICS OF LEGAL UNDERSTANDING IN ANTIQUITY: FROM PHILOSOPHY OF LAW OF ANCIENT GREECE TO JURISPRUDENCE OF ANCIENT ROME

Bryanik, Nadezda

The research literature on the Philosophy of Law revived in Russia at the turn of XX–XXI centuries (as well as a century earlier) is aimed at the understanding of radical changes in legal sphere and overcoming crisis of perception of justice. The article substantiates the thesis that in critical moments both in area of jurisprudence and legal practice domestic and foreign researchers assert that it is necessary to appeal to Roman Law as the pick point of the Ancient legal understanding, which is regarded as the basis for legal development in modern Russia. The research papers of E. Anners, J.-P. Vernan, G.V.F. Hegel, I.A. Pokrovsky, O. Shpengler, and G. Shershenevich serves as empirical material for philosophical interpretation of Ancient Law. The author's standpoint is to justify the fact that antiquity (sequentially, from Greek to Roman period) has created all possible forms of Philosophy of Law with its varieties that arose either from philosophy or from jurisprudence. The article argues that the recognition of natural-legal orientation is general vector of Philosophy of Law in Greek period. Philosophical context of Greek understanding of law is determined by cosmic law/nomos, which is associated with the moral-ethical characteristic – justice – when all citizens are perceived as “equal” (isoi) ones. Clear division between supporters of Philosophy of Positive Law and Philosophy of Natural Law did not take place in Greek period of Antiquity. The article analyzes distinctive features of Roman jurisprudence, which include technologicalness, applied character, and specification. The distinctive features of Roman jurisprudence are summarized by such notion as positivity of law. The causes and consequences of transformation of national civil law (jus civile) in the epoch of Empire into the right of nations (jus gentium) are revealed. Complementing the national civil law with the right of nations, Roman jurisprudence creates a particular form of Philosophy of Law – the philosophy of positive law, which arises not from philosophy, but from law.
Keywords: natural/positive law; legal technique; Roman jurisprudence; understanding of law; Philosophy of Law.

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PROBLEM OF HOMOGENEITY OF ANCIENT GREEK AND ROMAN PHILOSOPHY OF LAW: IUSTINIANI “DIGESTA” AND BLANCHÉ HEXAGON

Lobovikov, Vladimir

The subject-matter of this paper is a knotty problem of homogeneity of Ancient Greek and Roman jurisprudence as a system. The opinion that the so-called system in question is a non-homogeneous miscellany made up by qualitatively different aspects created in different times by different philosophers and lawyers is very strong and popular. Very often it is considered that in the so-called Roman Law System there is a conceptual opposition (formal logic inconsistency) among the three basic forms of law, namely, the custom-law, the naturelaw, and the human-made-law. The present article is targeted at elaborating quite an opposite opinion that, in its essence, Ancient Greek and Roman Law Philosophy is a homogeneous (consistent) system. For demonstrating such an unusual viewpoint the author applies methods of the analytical philosophy of law. Also the symbolic logic methods are utilized and graphic modeling of logic interconnections of concepts is used. By means of these methods for the first time in world scientific literature on Ancient Philosophy of Law the logic interrelations among the above-mentioned three different meanings of the word “law” are graphically modeled by the logic square-and-hexagon estimated by Blanché as a universal scheme for conceptual knowledge organization. The well-known Kalinowski logic square-and-hexagon for graphic modeling the logic interconnections among the deontic modalities “obligatory”, “forbidden”, “permitted”, “indifferent” is complemented in this paper by a significantly new jurisprudential interpretation of Blanché logic squareand-hexagon scheme. The new scientific result of this paper is original organization of logic interconnections among the nonstandard jurisprudential modalities represented by the following sentences: “It is the nature-law that p”; “It is the custom-law that p”; “It is the human-made-law that p”, where p stands for a proposition describing some state of affairs. It is demonstrated that the relation between “It is the nature-law that p” and “It is the custom-law that p” is the relation of logic contrariety. The article demonstrates that in the submitted quite a new jurisprudential interpretation of the logic square-and-hexagon scheme all the relevant logic rules are valid.
Keywords: Roman-law; Iustiniani-“Digesta”; Ulpian; nature-law; custom-law; positivelaw; Blanché-hexagon.

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Political science

UNDER-IMAGINED COMMUNITY

Fishman, Leonid

The article substantiates a point of view according to which «Soviet patriotism» is a continuation not of an «imperial» tradition, supposedly inherent in the Russian nation for a long time, but of another tradition – ideologized, socialistic one – originating from Russian populism and Marxism. Based on the concept of B. Anderson, it is asserted that nationalism is not the only society’s integrating strategy of building a picture of an “imagined community” that has become possible in modernity. Under certain conditions, the picture drawn by social groups that dominate the process of forming the society's ideas about itself is not necessarily focuses on “national” issues. The article shows that the policy pursued in post-revolutionary Russia in the course of the socialist ideological tradition was aimed at the formation of a new non-nationalistic and non-imperial “imagined community”, nevertheless isomorphic to the Western types. The article argues that the objective result of this policy was not so much the formation of “Soviet patriotism” but of the “under-imagined community” that exists until now.
Keywords: imagined community, nationalism, nation, empire, ideology, culture.

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Law

THE LEGAL REGULATION IN THE SPHERE OF BIOLOGICAL COLLECTIONS: SYSTEM, STATE, DEVELOPMENT

Kazantsev, Mikhail

For the first time in the legal science, the article obtains the system data on the array of legal acts and, accordingly, on the legal regulation in the field of biological collections. Particularly, it describes and analyses the hierarchic and substantive system of legal regulation in the sphere of biological collections. The article estimates current legal regulation (legislation) in this field, and concludes on the unacceptably low level of development of legislation on biological collections. At least, it is expressed in the lack of consistency and completeness of legislation on biological collections, as well as in the fact that the legislation in the areas related to biological collections not always takes into account the specifics of biological collections. Based on the conducted analysis, the article defines further developments in the biological collections’ legislation, provides concrete proposals for improvement of the legislation, and, what is mostly important, formulates the basic legal statements on the scientific collections.
Original definitions of the scientific and biological collections elaborated in the article are the following: “Scientific collection (biological, archeological, ethnographical, other) is recognized as purposefully collected, ordered set of objects, which is organized on the scientific basis, has scientific value, and can be used in scientific, scientific-technical, innovative, scientific-educational activities”: “Biological collection is a scientific collection, which is formed by the set (fund) of zoological, botanical, microbiological, genetic, and other biological objects, can be used in scientific, scientific-technical, innovative, scientific-educational activities, including the purpose of preserving biological diversity and use of biological resources”.
Keywords: scientific collection; biological (bio-resource) collection; collection object (sample, exhibited object); legal regulation in sphere of biological collections; legislation on biological collections; legal regime of biological collection; center for collective use.

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FREEDOM OF PEACEFUL ASSEMBLY AND CHILDREN: LAW AND PRACTICE OF RUSSIA AND GERMANY

Salenko, Alexandr


This article provides the comparative constitutional research of the Public Assembly Law in Germany and Russia. In particular, the author examines constitutionality and permissibility of children’s participation in public assemblies. Using examples of real cases from Germany and Russia, the author considers conflicting views regarding participation and non-participation of minors in the different type of political rallies, such as assemblies, meetings, demonstrations, marches, and pickets. The article systematically reviews the existing international standards on freedom of peaceful assembly, relevant domestic legislation and legal practice with regard to public events with the participation of children (i.e. citizens under 18 years of age). The author focuses on restrictions existing in German and Russian laws concerning children’s participation in public assemblies. In particular, the Russian Public Assembly Law limits the rights of minor children to organize three types of the public events (demonstration, march, picket). The German legislation – in the vast majority of the federal states (Bundesländer) – contains a clause, which states that as the marshal (Ordner) must act only adult citizens; however, it should be noted that in remaining three federal states (Bundesländer) – Lower Saxony, Saxony-Anhalt and Schleswig-Holstein – there are no limits on children’s freedom of the peaceful assembly. Special attention is given to the analysis of the provisions of the Russian educational law; in particular, the author investigates the principle of political neutrality of education and professionalism. According to this fundamental principle, any form of political agitation and campaigning is categorically prohibited in educational organizations; their workers are not allowed to advocate either for or against participation (non-participation) in any type of public assemblies. Based on comparative research, the author provides recommendations to prohibit involvement of children into so-called unauthorized public assemblies. However, the author stresses that this ban should be established in the Russian Law (namely, in the Russian Code of Administrative Offences) in the separate article, which would assign general liability for any involvement of minors in any type of administrative offences (not limited merely to prohibition children’s involvement in so-called unauthorized public assemblies only).
Keywords: children, minors, constitutional capacity, Grundrechtsmündigkeit, assemblies, meetings, demonstrations, marches,pickets, freedom of peaceful assembly, public assembly law, public event organizer, marshal, Ordner, political neutrality of education, Germany, Russia, Federal Republic of Germany, Russian Federation.

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LEGAL REGIME OF ARCTIC TERRITORIES OF RUSSIAN FEDERATION AND GRANTING SPECIAL RIGHTS TO INDIGENOUS (ABORIGINAL) PEOPLES

KONDRASHEV ANDREY , ZENKINA, ALEXANDRA , Ronzhina, Olga

For many years, both in the USSR and in the Russian Federation there was no understanding of the need to develop an integrated legal framework for regulating legal regime of Arctic territories. The article deals with the main regulatory legal acts of the Russian Federation regulating legal status of Arctic zone of the Russian Federation, as well as with theoretical approaches to the formation of an appropriate regulatory and legal framework. The authors analyze the main problems of the development of Arctic territories in two aspects: state (municipal) governance in Russian Artic, and the peculiarities of the status of indigenous small peoples living in Arctic territories. The authors conclude that it is necessary to update and seriously modernize legal regulation in this sphere of public relations. Based on the identified problems and shortcomings of legal regulation, the authors propose solutions addressed to the legislator in order to eliminate gaps in Russian “Arctic” legislation: transmission of powers over Arctic territories to the Ministry of Economic Development; registration of specific powers of the municipal bodies located in Arctic territories; providing legal conventions, which fix specific rights of the indigenous smallnumbered peoples of Russia; development of legislation on indigenous peoples in order to provide their specific rights toward co-management of the territories of their traditional location; creation of specialized state agency responsible for affairs of indigenous peoples; mechanism of state and companies’ compensation of indigenous communities for the use of natural resources.
Keywords: legal status of Arctic; Arctic zone of Russia; indigenous small people; state territory; legal regime of territory.

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