Publications
Ensuring sustainable socio-economic development of Russia is largely associated with governance based on law. This relationship is not easy to detect and ensure due to the diversity of management development, despite the nomination of strategic goals, there are deviations in the legal sphere from the established goals and principles of legal regulation. The article is based on the generalization of the materials of public and economic institutions, the author’s experience of many years of participation in the preparation of draft laws and other legal acts and the study of their implementation. The data of social research and scientific materials on this topic were used. During the analysis of the problems it was possible to identify the system of legal regulators, through which the strategic and national goals of the country and individual areas of economic development are established. Changes oft en occur without deep justification and the introduction of a management mechanism, and as a result, the subjects of management seem to break away from the objects of influence and act in their own «management circle». An important vector of development of management is the active use of the human factor and the participation of citizens in the management of state affairs. In the meantime, the passivity of people and the diversity of their social and legal roles, which are always consistent with the principles of democracy and the rule of law, are observed. Public institutions may be left without the support of citizens. Meanwhile, the sociology of law and legal psychology contribute to an increase in the «zone» of lawful behavior and the effectiveness of legal decisions and actions. It is necessary to take into account the influence of the external environment on the legal consciousness and behavior of citizens. The behavioural mechanism of governance and law is changing due to an increasing share of new information technologies. Digitalization aff ects the competence of the authorities and the implementation of decisions, the style of management personnel, the overall regulatory space. Robotics programs expand the possibilities of narrowing accounting and financial transactions, increase the volume of forecasting and analytical management functions. It requires a consistent solution of legal, organizational and other tasks. The main thing is to improve the quality of management to achieve the strategic goals of the country.
In the contemporary world the ratio of national and international legal regulators is extremely significant and complex phenomena. On the one hand, globalization in the legal and economic spheres requires the development of unified rules for several states. On the other hand, national law continues to be valid and defines the fundamental principles of state and society. In this regard, the authors conducted a comprehensive, multidirectional analysis of the interaction between national and international law:
- within the framework of the concept of “legal space”;
- in the comparison with the acts of international organizations, including practice of the Eurasian Economic Union;
- in terms of the hierarchy of national regulators;
- on the example of the departmental rulemaking.
The article is dedicated to the analysis of Big Data perspective in jurisprudence. It is proved that Big Data have to be used as the explanatory and predictable tool. The author describes issues concerning Big Data application in legal research. The problems are technical (data access, technical imperfections, data verification) and informative (interpretation of data and correlations). It is concluded that there is the necessity to enhance Big Data investigations taking into account the abovementioned limits.
Frederick Schauer's The Force of Law is an extremely rare example of that type of the philosophy of law which is very good and accessible at the same time. The central tenant of the book is the centrality of coercion for law. The theme that is extremely abstract, complex, sometimes even esoteric within the philosophy of law. Both leading schools of the modern legal philosophy of law, Hartian legal positivism and the interpretative theory of law of Ronald Dworkin, have reached such a high degree of sophistication that they become virtually inaccessible not only to the people outside the academia, but also to those, non-majoring in the field of legal philosophy. Schauer 's book is an extremely valuable example of the opposite.
Another highly important merit of the book is the interdisciplinary research perspective. The coercion phenomenon has been subjected not only to the rigorous philosophical conceptual analysis. Schauer enriches the research with the valuable insights from economics, cognitive psychology and sociology.
The article is dedicated to the review of Schauer's book "The Force of Law".
The Society-of-Angels Argument was put forward by the prominent legal philosopher Joseph Raz in order to substantiate the pre-eminence of the coordinative function of law and to downplay the role of coercion in law. The argument has a considerable impact on the development of the modern legal positivism. It was endorsed by one group of legal positivist and criticized by another. In this paper I analyze and critically assess what I consider to be probably the most sophisticated criticism of the Society-of Angels Argument presented by the prominent legal scholar Kenneth Einer Himma. My conclusion is that the Society-of-Angels Argument remains an important contribution to the philosophy of law and its criticism remains dependent upon the particular image of a legal system which I consider unrealistic and outdated.
This paper deals with the question of if and to what extent power-conferring legal rules can be treated as coercive and whether the concept of coercive offers can help to substantiate the coer- civeness of power-conferring in law. In his recent book, The Force of Law, Frederick Schauer claims that power-conferring legal rules are coercive.1 There are several ways to interpret this claim. In this piece I would like to explore one route of interpretation of this interesting and contro- versial claim, i.e., whether one can use a highly controversial concept of "coercive offers" to sub- stantiate this claim. First, the very concept of coercive offers requires clarification. In fact, there are several distinct ways to interpret it and I explore them below. The second point is whether the coer- cive offers concept is applicable in the context of the power-conferring legal rules. Two influential theoretical models of coercive offers are analyzed and critically evaluated and their ramifications for the coerciveness of the power-conferring legal rules are demonstrated. In my view, the only pos- sible route to substantiate the coerciveness claim from the vantage point of coercive offers concept is through the distributive non-neutrality of law narrative.
The paper is dedicated to the investigation of regional legislation in the sphere of the regulatory impact assessment (RIA). RIA is a crucial instrument for the evaluation of the effectiveness of law. It provides a solid basis for the objective assessment of proposed regulations in the sphere of business activity. The federal form of the Russian government requires the analysis of regional experience for the further development of RIA procedure.
There are significant differences in regional regulation of RIA, such as the form of the acts, the rule-making body, requirements for RIA, cooperation with local authorities, terms, accounting documentation, etc. Hence, investigation of legislation in Russian regions is important for the harmonization of regional legal acts, its development and amendments’ preparation.
The paper is aimed at the analysis of regional legal acts establishing regulatory frameworks on the following criteria: formal description of legal acts; RIA models; rates of legal acts’ regulatory impact; RIA stages; persons notified about public deliberation; content of the consolidated reports; terms of RIA stages; annual accounting of RIA development.
Conclusions, concerning development of regional legislation regulating RIA are provided. The results obtained provide a guideline for studying other aspects of RIA procedure, including law-enforcement practice and retrospective analysis for RIA development.
The basic question of the paper: are power-conferring legal rules coercive and in what sense can we say that power-conferring legal rules coerce? In his recent book, Frederick Schauer answers the first question in the affirmative and proposes an interesting account of how it works. I believe that this claim is unsustainable due to the inconsistencies in the psychological account of coercion ap- plied by Schauer, and his theory’s unrestricted reliance on counterfactuals. In what follows, I try to reconstruct the thesis on the coerciveness of the power-conferring legal rules. The basic insight is that the power-conferring legal rules coerciveness claim is inextricably connected to the unmoral- ized account of coercion, as any moralized theory shifts the problem from coercion to the issue of distributive justice. However, the unmoralized concept of coercion can hardly be coherent in law because it makes coercion a matter of context, dependent on the willpower of each individual, which threatens to eliminate the force of law as such. Even applied on its own terms, the unmoral- ized concept of coercion is unworkable within the context of power-conferring through law because power-conferring legal regimes do not eliminate non-legal alternatives, making it dependent on the will of the legal subjects themselves. Schauer's everlasting contribution lies in his ingenious attempt to substantiate the coercion (of power-conferring rules) claim relying on counterfactuals. A (co- erced) choice has been limited relative to some situation which never occurred but would or should have occurred. In order to limit a set of counterfactuals, making them realistic (preferences and needs are limited only by imagination), one should impose severe limits on them, which makes it impossible to characterize the particular situations described by Schauer as coercive in that sense.
The article is dedicated to the problem of methodology of law effectiveness assessment. Ex post assessment, as the recently introduced instrument, and its perspectives are analysed. Institutional and informative aspects are investigated.
This article analyzes the current state of debates on minimum levels of creativity needed for works to be copyrightable, including dominant principles in Russian jurisprudence and judicial practice, principal trends, and contradictions and dysfunctions that arise in the course of implementation of various criteria of copyrightability.
An analysis of the judicial practice of recent years warrants the conclusion that standards of creativity as a criterion of copyrightability have dropped drastically. Today’s standards are similar to those of the former American sweat of the brow doctrine.
But, unlike foreign legal systems that set comparatively low standards of protectability, the Russian judiciary has not yet evolved mechanisms of compensation for risks of monopolization of public domain content.
First of all, there is no practice of granting exclusive rights to a work that is similar to an earlier work but has been created independently. Secondly, the practice of refusing protection to non-unique, standard, generally known, and generally available content is dwindling away. Thirdly, there is a trend to give a large scope of protection to works of low authorship.
As a result, exclusive rights are granted to standard or generally accessible content – content that must belong to the public domain, - which puts unjustified restrictions on the creative activities of other authors. Moreover, it makes their legal status unpredictable as it lays the basis for unintended but penalized copyright violations. This amounts to a classical case of overprotection.
In den letzten Jahren erlebte das russische Gerichtssystem einige deutliche Veränderungen, die nicht ohne Einfluss auf die Rechtsprechung im Bereich des geistigen Eigentums geblieben sind. Die sich bereits früher abzeichnende Tendenz, die Anforderungen an die urheberrechtliche Schutzfähigkeit abzusenken, dürfte sich verstärkt haben. Zwar entspricht diese Tendenz einem globalen Trend, der auch in Deutschland vor allem unter dem Einfluss des europäischen Rechts zu beobachten ist. Allerdings vollzieht sich die Wende im russischen Urheberrecht so radikal, dass dieses mehr und mehr an die Sweat-of-the-brow-Doktrin des Copyright Law erinnert. Der vorliegende Beitrag widmet sich den Problemen, die sich daraus ergeben, und schildert zugleich die neuen Entwicklungen der gerichtlichen Praxis, die sowohl den urheberrechtlichen Schutz im Allgemeinen als auch den Schutz einzelner Werkarten betreffen.
Mit dem Gesetz vom 3. 12. 2011 wurde in Russland die gesetzliche Grundlage für die Gründung von Partnerschaftsgesellschaften geschaffen. In der Praxis hat die Partnerschaftsgesellschaft kaum Bedeutung erlangt. Der nachfolgende Beitrag zeigt jedoch auf, dass die Regelungen für die Partnerschaftsgesellschaft fühlbare Auswirkungen auf die später durchgeführte Reform des allgemeinen Gesellschaftsrechts in Russland gehabt haben.
In 2014 Professor Thomas Schultz published the book “Transnational Legality”, in which he raised a vast number of strikingly interesting issues. It is no exaggeration to say that Schultz has written a marvellous book. In this paper only one of the issues is considered: the thesis of the nonscalability of the concept of law. The paper is dedicated to a critical assessment of the thesis.
This article analyzes the current state of debates on minimum levels of creativity needed for works to be copyrightable, including dominant principles in Russian jurisprudence and judicial practice, principal trends, and contradictions and dysfunctions that arise in the course of implementation of various criteria of copyrightability.
The content of consolidated reports about regulatory impact assessment, formed by drafters of legal acts, is analyzed in the paper. The consolidated reports have been reviewed for compliance with requirements of information provision. Completeness and quality of reports have been investigated. The research provides a solid ground for identifying problems of regulatory impact assessment and proposing methods of solution.
