19 (2)
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2019
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catalogue – 43669
ANTINOMIES
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Law

FEATURES OF THE CONSTITUTIONAL LEGAL STATUS OF THE NATIONAL HUMAN RIGHTS COMMISSION AND THE STATE HUMAN RIGHTS COMMISSIONS IN INDIA

Kuznetsova, Svetlana

Abstract. In this study, the author refers to the experience of India in forming the system of administrative bodies for the protection of human rights, which is based on the federal structure of the state. The article deals with the features of the organization and activities of the National Human Rights Commission and states human rights commissions. The advantages and topical problems of the exercise of their powers on the basis of legal acts and law enforcement practice of the Supreme Court of India and the State High Courts are identified and formulated. The availability and ease of appeals to the human rights commissions, the high popularity of the state commissions among citizens, which leads to the conclusion about the effectiveness of the organization of the human rights body system, considering federal organization is noted. The role of annual reports of the human rights commissions submitted to the government of India and state governments to ensure the latest implementation, protection and restoration of violated human rights is highly appreciated taking into account the necessity of taking action on the results of their study and the need to submit reports on the results of measures taken to the parliaments of the federal and regional level. Significant problems are identified relating to the application of legislation: conflicts in the division of powers between the National Human Rights Commission and the state commissions, as well as the application of their public powers in their activities; lack of financial independence of the commissions, as well as restrictions on the implementation of its functions on complaints of persons in the armed forces. The author formulates possible measures, the use of which will increase the effectiveness of the commissions activity in India and strengthen their status in relations with federal and states authorities. In particular, it is offered to legislate the obligation of the bodies in whose actions the commissions revealed signs of a violation of human rights; to prepare answers to the latter as a result of taking measures aimed at restoring violated rights, as well as preventing of repeated violations. It is also proposed to provide for the participation of the commission in determining the amount of their funding for the next fiscal year by drawing up a calculation with justification of the amount of funding necessary for the effective exercise of authority.
Keywords: federation; protection of human rights in Indian Union; National Human Rights Commission; State Human Rights Commission; distribution of powers; procedure of execution of human rights commission recommendation; competence in sphere of human rights protection.

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COMMUNITY LAW

Kostogryzov, Pavel

Abstract. The article deals with the problem of conceptualization of the social-normative order, which is not directly related to the activities of the State and is most often denoted in legal science by the terms “legal customs” and “customary law”. This type of law arises in the pre-state period, and then coexists with the system of norms created by the State for a long historical period; in some regions it continues to play the role of an important social regulator till now. Analyzing the well-established theory of “customary” law, the author proposes to look at this concept in a new way, revealing a number of theoretical and epistemological problems associated with it. It is shown that the most common definition of customary law is internally controversial; ambiguity and unjustifiably broad application of this concept impoverishes its content. The idea that the law of pre-state societies and those state-organized societies, which have retained legal institutions independent from the state, “consists” exclusively of customs being the result of “multiple repetition” of certain (more or less random) actions, is incorrect. Applying a fundamentally different approach to the typology of law based not on formal criteria, but on the nature of the force that enforces the general bindingness of legal norms, the author introduces and substantiates the concept of community law. It is shown that this term is most relevant to denote the law of traditional society that is not based on the state power’s will, as well as those legal orders that exist in modern societies in parallel with the official law of the State. Its scope fully corresponds to the set of phenomena it designates, and its use helps to avoid the contradictions and misleading connotations that arise from the use of the word combination “customary law”. Based on the factual material provided by legal history and legal ethnography, the author identifies the main structural and substantive features of community law that distinguish it from other types of law, and gives a description of its sources.
Keywords: community law; customary law; folk law; non-state law; law in traditional society; community; legal pluralism; legal anthropology; legal history.

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