22 (4)
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2021
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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)

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Philosophy

Debate on the Subject Matter of Anglo-American Philosophy of Law

Koval Sofya
The purpose of this article is to clarify the concept of “Anglo-American philosophy of law” and highlight the debate on its subject. Both the geographical reference to the Anglo-American tradition and the content of the philosophy of law itself need to be clarified. In order to understand what the Anglo-American philosophy of law is and what is the essence of the debate around its subject matter the author of the article firstly investigates the main stages in the development of the Anglo-American philosophy of law, beginning with Jeremy Bentham and ending with modern authors. As a result, we arrive at a conclusion that the ways of development of the philosophical and legal tradition in Great Britain and the United States are not identical. Secondly, we should analyze the term “philosophy of law”. Overwhelming majority of Anglo-American scholars identify the terms “legal philosophy”, “jurisprudence” and “analytical legal positivism”. Therefore, “philosophy of law” and “jurisprudence” mostly are used as synonyms. It is also important that the concept “jurisprudence” in the Anglo-American Academy is not used in its wide sense as in Russian science. It includes only abstract theoretical, not practical, study of law and general legal concepts (general jurisprudence) and theoretical foundations of branches of law and legal systems (special jurisprudence). The author concludes that the debate about the method that has been going on since the 50s of twenty century between positivists and anti-positivists, smoothly turned into a new dispute about the subject matter of Anglo-American philosophy of law. The main object of the dispute is the legal philosophy “analytical core”. Supporters of the core use a conceptual analysis of legal concepts beyond time, politics, morality, and social context. The author of the article analyzed the main critical papers devoted to the current state of the legal philosophy and came to the conclusion that we can distinguish two major types: (1) papers that criticize the “analytical core” of the philosophy of law and try to separate pluralistic jurisprudence and limited abstract legal philosophy, (2) papers which tend to change the very philosophy of law, reorienting it to the social context, political philosophy, ethics, etc. Also, as a result of the research two different understandings of the content of analytical philosophy of law were discovered. First on the one hand is analytical positivism, which includes legal positivists (J. Austin, I. Bentham, G.L.A. Hart, etc.). On the other hand, in a broader sense, it is perceived as an intellectual style. In this sense we can call anti-positivists like natural lawyer J. Finnis and the founder of legal interpretivism, R. Dworkin as analytical scholars.
Keywords: Anglo-American Philosophy of Law; Jurisprudence; Analytical philosophy of law; Subject matterе of legal philosophy; Ethics; Political philosophy. 
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Distributive Theories of Justice: From Utilitarianism and Back

Balashov Dmitry
 For half a century, the problem of justice has been one of the most controversial and debated in Western academic science. For the Anglo-American tradition, the starting point for controversy about distributive justice can be considered 1971, when the philosopher John Rawls published work The Theory of Justice. This book made a revolution, on the one hand, provoking a large-scale discussion on the question of what fair principles should be used in our society, and, on the other hand, finally brought deontological ethics to the leading positions in political philosophy, which replaced the utilitarian approach. Several decades after the publication of Rawls's work, the debate within the framework of the deontological approach to justice reached a kind of dead end, having failed to develop a universal position. Other areas of thought have become the most discussed topics in political philosophy. At the same time, the discussion within the framework of the problem of distributive justice remained extremely relevant, since directly related to the distribution of public goods, which is always one of the main problems of political choice. One of those who suggested a way out of the current impasse was the philosopher Amartya Sen, who proposed an original concept for solving, called “the capability approach”. The purpose of this article is to illustrate how Sen was able to overcome the difficulties faced by Rawls's theory and other new theories of social contract. The author of the article believes that Sen, in fact, returned to a kind of utilitarian ethics, in the controversy with which Rawls developed his deontological version of the theory of justice. The article attempts to substantiate that the capability approach is a kind of synthesis of deontological ethics and utilitarianism. The article examines utilitarian ethics, its criticism from Rawls and the solution that Rawls proposes in the framework of the deontological approach, examines the main differences between new theories of social contract and Sen's the capability approach. The article analyzes Sen's criticism of the theory of Rawls and his followers and Sen's solution to the problem of justice. Particular emphasis is placed on the comparison of deontological and utilitarian views on the problem of justice. At the end of the work, it is concluded that the deontological ethical position on the issue of justice, which has firmly taken the leading positions in the Anglo-American academic community since the 1970s. XX century at the turn of the century could not remain monolithic and faced serious criticism. Utilitarianism, so heavily criticized by Rawls, is back in a new iteration of Sen's the capability approach.
Keywords: utilitarianism; consequentialism; teleological ethics; theory of justice; initial situation; veil of ignorance; free rider problem; capability approach.
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Political science

Political and Legal Values of the European Union and its Member States: Does the Covid-19 Pandemic Have Transformative Potential?

Pankevich Natalia , Rudenko Valentina
The article analyzes the transformative potential of the COVID-19 pandemic as regards to the value system of the European Union and its member states. The methodology of the research is informed by certain provisions of transformational theories, the approach of S. Walby conceiving the crisis as a state of disproportionality between cause and effect, and the idea of E. Shils about the dynamics of interaction of value and institutional systems. The value foundations of the EU as an integration project are considered. The article analyzes the regulatory potential of this supranational entity and the effectiveness of its values foundations the crisis COVID-19 pandemic. It discovers the values collisions at the level of the member states of the European Union and their changes during the COVID-19 pandemic. The authors conclude that the pandemic has become a serious test for the European Union and its members as polities built on the basis of common values which are considered as one of the indisputable advantages of this association. The cascade of crises caused by the COVID-19 pandemic questions the entrenchment of many of the fundamental values of the European Union and demonstrate that their rootedness is significantly overestimated. There is a significant disproportion of the response measures and the key values that underlie the Union. The COVID-19 pandemic impacts comprehensively the values of the European Union. The basic European economic model, based on the recognition of the market as the main regulator of public relations, has been criticized, but at the same time, additional opportunities have opened up for adjusting social policy. The status and place of human rights come again into discussion. The conducted research is important for the further development of practices for responding to crisis phenomena.
Keywords: pandemic; values; human rights; human rights implication; COVID-19; European Union. 
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Law

Some Issues of the Implementation of Legislation of the Eurasian Economic Union in National Legislation of the Russian Federation in the Field of Economic Relations

Karasev Anatoly , Kozhevnikov Oleg , Misuragina Veronica
The article proposes a legal mechanism for the implementation of the international norms of the Eurasian Economic Union (EAEU) into the domestic legislation of Russia by applying two main forms: transformation (including international norms in national legislation in amended form) and incorporation (exact textual reproduction of international norms in national legislation). The study has revealed that the regularity of the implementation of EAEU norms is different: transformation of EAEU norms is applied less frequently than incorporation. Typically, incorporation is applied when international norms establish general rules, within which states adapt obligations to their legal systems. After analyzing the existing law-enforcement practice, the authors come to the conclusion that the transformation of the EAEU norms in Russia is implemented in the form of subordinate normative legal acts – acts of the Government of the Russian Federation or orders of ministries and departments. However, transformation is different from ratification. Describing the mechanism for the implementation of the EAEU norms (which is similar to the reception procedure) into domestic legislation, the authors identified its legal uncertainty in Russia. The procedure for general reception in the Russian Federation is not fully defined, since the existing constitutional model for introducing international norms into the system of Russian legislation provides various options for implementation depending on the changing geopolitical and economic situation in Russia and its regions. In this regard, there is an “individualization” of the implementation procedures for each specific case in law-enforcement practice. It can vary greatly both in form and in mechanism. The highest courts of the Russian Federation have a decisive role in choosing the form of implementation today.
Keywords: Eurasian Economic Union; national legislation; EAEU; legal integration; implementation of international norms; ratification; international law. 
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Interaction of the Head of State With the Specialized Body of Constitutional Control in the Cis Countries

Nechkin Andrey
The institutions of the one-person head of state and the specialized body of constitutional control are quite new for the CIS countries, however, the CIS states have shown a rather wide variety of approaches in the regulation of these institutions. Analysis of the interaction between the head of state and specialized bodies of constitutional control on the basis of a comparative law research method is interesting both for the purpose of better understanding the features of the functioning of institutions that are relatively new for the CIS countries, and in order to assess the effectiveness of the implementation of the principle of separation of powers, which has received normative regulation in the constitutions of absolutely all of the CIS states. The author consistently examines the procedure for the formation of a specialized body of constitutional control, the procedure for early termination of the powers of its members in order to identify the degree of influence of the head of state on these processes, and also analyzes the control powers of a specialized body of constitutional control exercised in relation to the head of state or in relation to other bodies state power at the initiative of the head of state. Based on the results of the analysis, the article concludes that there is an extremely high degree of dependence of a specialized body of constitutional control on the head of state, who already has a privileged position in the system of separation of powers, in a number of CIS countries (the Republic of Belarus, Kazakhstan and the Russian Federation).
Keywords: CIS countries; head of state; specialized bodies of constitutional control of CIS countries; constitutional courts of CIS countries. 
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Constitutionalism in the Republic of Kazakhstan: Genesis and Features

Zalesny Jacek , Ostapovich Igor
The study examines the genesis and features of the formation of modern constitutionalism in the Republic of Kazakhstan. The authors made an attempt to reveal the specifics of Kazakhstan constitutionalism, its axiology and describe the adopted governance mechanisms. They prove that the dynamics of transformations of the Kazakhstan constitutionalism is based on neo-patrimonial social relations and neopatrimonial relations of power, and the purpose of the ongoing constitutional reforms is to preserve the stability of the state structure, taking into account the spiritual, moral, cultural and historical characteristics of the peoples inhabiting Kazakhstan. To determine the peculiarities of Kazakhstan constitutionalism, the authors use the methods of political science: general logical and empirical, dogmatic and neoinstitutionalistic approaches, special legal methods of cognition: formal legal method, formal logical method, systemic method, technical and legal method. The article substantiates that the so-called superpresidential era ends in the Republic of Kazakhstan and the characteristics of the presidential-parliamentary system appear. The authors put forward the following thesis: this situation is caused by the fact that the ex-president did not bring up a successor capable of adequately continuing and developing the cause of building a sovereign Kazakhstan. Therefore, it is necessary to change the mechanisms of state administration in order to preserve power in the hands of the ex-president using other means. It also serves as a means of minimizing the risk that the incumbent president will not be able to fully respond to the challenges facing the state, which would have negative consequences for large social groups. It should also be noted that the authors' task was not to analyze the institution of the national leader (elbasy) and its place in the constitutional system of Kazakhstan. The article notes that the development of Kazakhstan constitutionalism goes through three main stages. At the first stage, there is a conflict between the Kazakh traditions of state structure and the Soviet model of state structure. The second stage is the abolition of Soviet constitutional decisions and the simultaneous formation of the Kazakh state structure of the state of Kazakhstan. And the third stage is the construction of monarchical presidentialism as a form of government that contributes to the stability of the state structure and international subjectivity of the Republic of Kazakhstan, and subsequently – its dismantling, justified by the same constitutional values.

Keywords: Constitution of the Republic of Kazakhstan; constitutionalism; president; succession of power; state authorities.
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