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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)


Falkina Tatiana

Ural State University of Economics, Yekaterinburg, Russia, E-mail: f.t.u.81@mail.ru

Publications in yearbook
Human Rights Potential of Deputies in the Russian Federation
This article analyzes the human rights competences of deputies of all levels of state authorities in the Russian Federation: federal parliamentarians (including senators), deputies of legislative (representative) authorities of subjects of the Russian Federation, and deputies of local representative bodies. The human rights competences of deputies are delimited from human rights powers of the Parliament. The article justifies the use of the term “competence” regarding the human rights activities of deputies. It introduces the division into individual and group human rights competences. The specifics of the human rights competences of deputies is noted, it is shown through the peculiarities of the methods to obtain and keep information about violations of rights and freedoms. The correlation between the method of electing deputies and their potential as human rights advocates is revealed. The following human rights competences of deputies are analyzed: initiating judicial proceedings (in the Constitutional Court of the Russian Federation and courts of general jurisdiction); sending deputy appeals (requests for information, deputy requests and demands to eliminate violations of the law, rights and freedoms of citizens); visiting bodies and organizations by a deputy. Conclusions are drawn about the incompleteness of the human rights competences of deputies, the imperfection of the legal mechanism for their implementation, the absence of many important human rights competences of deputies in the subjects of the Russian Federation and especially deputies of the municipal level. In this regard, some novelties are proposed: endowing federal parliamentarians with individual competence to appeal to the Constitutional Court of the Russian Federation and the similar but already group competence of deputies at the level of the subject of the Russian Federation; endowing all deputies with the right to appeal to the courts of general jurisdiction to protect the rights and freedoms of citizens and organizations; unification of the institution of deputy appeals, including specification regulating the institution of the deputy’s claim to eliminate violations of the law, subjective rights and freedoms; expansion of the number of organizations available for deputies to visit by involving entities that implement publicly significant functions.
Keywords: deputy, competence, human rights, deputy inquiry, judicial protection, parliament, control, human rights activities
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Halperin Sandra

Royal Holloway (University of London), London, U.K. E-mail: sandra.halperin@rhul.ac.uk

Publications in yearbook
Modernity and the embedding of economic expansion
The nationally embedded and relatively broad-based economies characteristic of developed industrial countries are usually seen as the incarnation of a modern economy. These economies are largely internally oriented and are based, to a relatively great extent, on production and services based on local and national needs. Their provenance is generally assumed to have been processes of development that began in the sixteenth century and that, in the nineteenth century, accelerated with the expansion of industrial production and the growth of global trade. This article challenges that assumption. It argues that today’s modern economies represent, not the culmination of long-term processes, but a recurring phenomenon within capitalism. It argues that, in the history of capitalism, there have been phases of nationally embedded and global free market capitalism – periods when capital is relatively more, and relatively less, free from the regulation of nation state. Today’s nationally embedded economies represent, not a further point along a unilinear developmental trajectory, but a return to features of the moral economies that characterized both European and non-European societies before the nineteenth century. 
Keywords: capitalism; class compromise; embedded economies; neo-liberalism; shock therapy
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Likhter Pavel

Penza State University, Penza, Russia, E-mail: lixter@mail.ru

Publications in yearbook
Categories of the Beautiful, Proportionate, and True in Plato’s Doctrine as Prerequisites for the Formation of Legal Reality
The article considers some ideal categories as foundations of legal reality. Taking into account the diverse potential prerequisites of law, the author focuses on three modifications of the good highlighted by Plato in the dialogue “Philebus”: the beautiful, the proportionate, and the true. The article argues the utility of employing such a concept of analytical philosophy as supervenience, which describes the determinacy of sets of properties in two complex systems, to explain the interplay between these prerequisites and legal phenomena. While traditionally used to describe the dependence of mental phenomena on physical grounds, supervenience also has a methodological relevance within legal science. Three modifications of the good as delineated in “Philebus” and their contributions to the formation of legal institutions are considered. For this purpose, several levels of aesthetics are distinguished, which not only encompass stylistic beauty, but also the substantive content of legal constructs. Special attention is paid to reader-response criticism, which studies the experience of perception of legal institutions by a subject of legal relations. According to this perspective,legal phenomena have to possess aesthetic appeal and justification in order to be accepted by recipients. This is especially important when consolidating constitutional values: the legitimization of fictitious axiological elements creates risks of legal anomie. The article further underscores the significance of the correspondence theory of truth for the ontology of law, justifying the priority of rational cognition of universals over empiricism. To solve research problems, legal-historical, logical, structural-functional, normative, dialectical, prognostic and comparative methods and approaches are used. Based on the findings of the study, the author concludes about the independent ontological status of legal phenomena that have a sign of reality as intelligible elements within the objective mental being of participants in legal relations. 
Keywords: legal reality, prerequisites of law, aesthetics, proportionality, truth, supervenience, objective idealism, ontology of law, reader-response criticism, Plato
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Ryzhkov Konstantin

Candidate of Law, Associate Professor, Department of Civil Procedure Law, Ural Branch of the Russian State University of Justice, Chelyabinsk, Russia. E-mail: knrz2006@yandex.ru

Publications in yearbook
Uniform Interpretation and Application of the Rules of Law in Civil and Arbitration Proceedings: Factors of Influence
One of the most important tasks facing the judicial system is to achieve uniformity in judicial practice. Its absence makes law enforcement activity unpredictable, which not only complicates the activities of the subjects of procedural legal relations, but can also undermine public confidence in the judicial system. At the same time, due to the diversity, complexity and dynamism of social relations, it is not possible to achieve the specified qualitative state of judicial practice in all cases, and therefore the issue of identifying and comprehensive analysis of factors influencing the achievement of such uniformity is relevant. The article analyzes the problems associated with the existence and classification of factors affecting the uniform interpretation and application of the rule of law in civil and arbitration proceedings. Problems related to the specificity and degree of influence of these factors on the uniformity of judicial practice are analyzed. Special attention is paid to the study of the prerequisites for the observance and violation of such uniformity in the legislation. The aim of the study is to establish and classify factors affecting the uniform interpretation and application of the rule of law in civil and arbitration proceedings. To achieve this goal, the author has set the task of analyzing each of these factors in terms of the degree and specificity of its impact on the results of law enforcement. Also, the author has set the task of formulating conceptual proposals for improving the current legislation. Based on the results of the study, the author identified five categories of factors influencing the uniform interpretation and application of the rule of law in civil and arbitration proceedings, and also identified specific factors within each of the categories. It is proposed to concretize the list of applicable forms (sources) of law in the current legislation, including in an exhaustive way to resolve the issue of the possibility of using judicial precedent and legal doctrine as such. The author also proposed to regulate in detail and uniformly the essence and place of generalizations of the practice of courts of inspection instances, providing for the possibility of referring to them when passing judicial decisions on specific cases. 
Keywords: uniformity of judicial practice; interpretation of law; application of law; civil procedure; arbitration procedure
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Sinitsyna Valeria

Master's student of the Ural State LawUniversity, Yekaterinburg, Russia. E-mail: sinitsina-lera@mail.ru.

Teplyashin Ivan

Candidate of Law, Associate Professor of Theory and History of State and Law Department, Judicial Institute, Krasnoyarsk State Agrarian University, Krasnoyarsk. E-mail: ivt-sl@yandex.ru.


Publications in yearbook
Current Status of Higher Juridicl Education and its Provision with Practical Component in Modern Russia

The article analyses the mechanism of higher juridical education. The necessity of forming the educational policy, which takes into consideration the social-legal interests of Russian society, is underlined. The necessity to have practical component in such education and the reasons for that are observed in details, all possible recommendations are given.

Keywords: Russian student, Russian education, higher juridical education, scientific community, practical component of education, constitutional law.

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Causes of Corruption and the Role of Russian Community in the Anti-corruption mechanism

The article analyzes the main causes of corruption in Russia as well as the role of civil society institutions in this context. The author justifies the need for the participation of Russian society in the anti-corruption activities. The importance of the interaction between state and public institutions as the condition for the reduction of corruption is considered.

Keywords: corruption, the causes of corruption, anti-corruption legislation, the Russian society, policy in the field of opposition to corruption, identity.

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The Role of Civil Society in Counteracting Corruption: Theoretical Aspects

The article examines the mechanism of counteracting corruption in Russia and the role of civil society institutions. The author highlights the need to involve Russian civil society into implementation of methods aimed at combating corruption, and emphasizes the importance of comprehensive study of historical background of social and political development of individuals and society in Russia.

Keywords: counteraction toward corruption, Russian anti-corruption legislation, civil society, legal education of individual, counteracting corruption policy.

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Tereshchenko Dmitry

Independent Researcher. Е-mail: terdisem@mail.ru

Publications in yearbook
Legal Responsibility: Problems of Rethinking the Traditional View
Modern legislation does not contain a clear definition of the concept of “legal liability”. This is due to the presence of many author's points of view and opinions, where the definitions differ in meaning, and also have a wide range of embedded meanings. This situation leads to an ambiguous understanding or to an unjustified expansion of the interpretation due to the unjustified association of legal responsibility with other similar social and legal concepts and phenomena. As a result, there are discrepancies in law enforcement practice. The article considers the shortcomings of the concept of a single legal liability, justifies the impossibility of combining positive and negative liability. Due to the fact that the legal literature has repeatedly concluded that it is necessary to conduct additional theoretical research to solve this problem, the author made an attempt to rethink the traditional view in this matter. In addition to general scientific methods of cognition, broader theoretical approaches to understanding the phenomenon of responsibility are proposed. First, responsibility is considered as a functional characteristic of the interaction of the elements that form its semantic content. Secondly, the concept is studied from the standpoint of dimensionality, i.e., from the point of view of the ability of a concept to have multiple values (dimensions), depending on the number of selected keywords that are included in the definition of the concept. Thus, the definition of legal responsibility, on the example of criminal responsibility, is considered at two levels of abstraction: at the first level as a measure of responsibility; at the second-as the relationship between punishment and crime, which act as a fixed act (fact) or committed action. Based on the conducted structural research, the author's definition is formulated, which allows combining the main number of existing points of view and opinions on the definition of liability into a single principle (rule) of legal liability. For the first time, the concept of legal responsibility is considered as a logical and mathematical model that allows interpreting the legal concept based on the provisions of differential calculus. From a practical point of view, the use of extended methodological approaches should serve to organize various opinions into a single semantic understanding of legal responsibility. In the context of the widespread digitalization of law, the proposed methodology allows creating formalized structures of derived concepts used in various branches of law.
Keywords: legal responsibility; problems of the theory of law; criminal responsibility; the concept of positive and negative responsibility; formalization of law; definition of responsibility; dimension of the concept; category of interaction; measure of responsibility; derived characteristics of action; problems of the methodology of law; ability; opportunity; duty
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Varlamova Natalia

Candidate of Law Sciences, Associate Professor, Leading Research Fellow, the Human Rights Department, Institute of State and Law, Russian Academy of Sciences, Moscow, Russia. E-mail: varlam_n@list.ru

Publications in yearbook
Human Rights in the Leon Petrażycki’s Psychological Theory of Law: Reconstruction and Critical Interpretation
The purpose of this article is to reconstruct Petrażycki’s ideas on human rights by using the scattered and sometimes contradictory remarks on the issue to be found in his works. Leon Petrażycki did not pay special attention to human rights in his works, although this problematic has been a major focus of legal theory and legal philosophy, including the Russian one, throughout the modern history. Petrażycki viewed law as imperativeattributive emotions experienced by individuals. At the same time, the imperative component of such emotions arises as a reaction to the attributive one – i.e., an obligation is conditioned by another’s claim, and it is the satisfaction of the obligee’s interests that plays a decisive role, not the mere performance of the corresponding obligation as such. Petrażycki’s assumed that certain intuitive legal beliefs, being fundamental in nature, are absolute and do not derive from positive law – e.g., the beliefs that torture, rape, human enslavement, and certain methods of capital punishment are unacceptable. Such psychological beliefs can well be equated to human rights. However, Petrażycki denied that a right is an intention to implement one’s selfish interests. Petrażycki argued that law, as well as morality, pursues public welfare and prosperity, and the spiritual and cultural education of humanity. It is not only human beings that can obligees. Petrażycki held that animals, spiritual beings, or even paintings can play this role as long, as the satisfaction of their claims becomes the focus of emotions experienced of an imperative side. He obviously did not share a liberal understanding of human rights as personal freedoms. Even more, Petrażycki believed that his social ideal of universal active love is the ultimate goal of law’s educational effects, and this ideal requires the overcoming and elimination of exactly those aspects of the human psyche that manifest themselves in the rights understood as personal freedoms. By the same token, Petrażycki anticipated many trends that characterise the contemporary understanding of human rights.
Keywords: Leon Petrażycki; human rights; psychological theory of law; imperativeattributive emotions experiences; morality; social ideal of universal active love
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