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2020
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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)

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— showed 3 articles from3

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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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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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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