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KUTAFIN UNIVERSITY CHRONICLE
EXPERT OPINION
Édouard Lambert entered the global jurisprudence history as one of the founders of the European comparative tradition. The Institute of Comparative Law founded by him in 1920 became the first academic center for the aforementioned branch in Europe. Lambert’s professional activity was, among other things, connected with the formation of the young Soviet state.
This article deals with Lambert’s view point with respect to one of the key strategies of university development: the strategy of academic research publications. In this regard, Lambert acts not only as a publisher, but also as a mastermind, a pioneer of the publishing projects in question. In addition to the historical and legal aspects, this study also has methodological potential. A look at Lambert’s creative heritage allows observing the direct correspondence between the history of publishing and the history of legal thought.
Nowadays, when the publications by researchers or academic professionals are often considered in the quantitative rather than qualitative light (for no good reason), it is important to look back at the origins of the comparative thought in order to enrich the newest tradition of law with all the very best that comparative jurisprudence, as a vector for legal science development, gave the legal world.
VECTOR OF LEGAL SCIENCE. General theory and history of Comparative Law
Comparative legal studies are still dominated by the ideological American view of successful social development only through institutions that correspond to Western standards of the rule of law. Non-Western traditional values and institutions are declared to be the cause of the stagnation of Asian and African societies in the 19th-20th centuries. Yet, the causal link between successful economic development and Western legal institutions is not clearly proven. A functional view of law in a socio-cultural context allows us to look differently at the fact of going or not going to courts in non-Western countries. This article builds on the experience of Japan’s legal modernization to examine different academic approaches to explain why the majority of Japanese refused to go to court before and after the Meiji Restoration of 1868, but changed their behavior at the turn of the 21st century. The first part of the article presents the so-called “cultural thesis” as an explanation of the main obstacle to modernization, the second part introduces alternative explanations (defects of the legal system and the role of political elites), generated by the need to explain the “legal turn” in Japan in the 1990s. The example of Japan is significant for understanding the possible obstacles to reforms of justice according to Western models in non-Western societies, including Russia.
The last three decades have been marked by the intensification of comparative studies in our country, an important plot of which is to determine Russia’s place on the legal map of the world. Russian comparative studies initially, since the 19th century, developed in the East — West ideological paradigm.
In the post-Soviet period, an opportunity arose to rethink the global system of legal coordinates, especially in the light of modern international turbulence. Among the comparative works published by Russian publishing houses, attention is drawn to those that quite clearly define Russia’s belonging to the Romano-Germanic legal family. Indeed, in structural and functional terms, the Russian legal system has many acquired features similar to individual parameters of the Romano-Germanic legal family. However, one should also agree with those researchers who point to the incompleteness of the legal self-determination of Russia, to the existence of some alternatives for its further development.
The author of the article assumes that the state of legal consciousness and legal culture, together with other factors of public life, is of great importance for legal identification. At the same time, in his opinion, the pan-Slavic tradition was not of great importance for Russia due to the active expansion of the West to the East. On the other hand, until the end of the 1980s, the socialist legal family was a very real phenomenon. At the moment, apparently, Russia is more and more showing itself as the initiator of the emerging Eurasian legal system. However, this process is clearly not completed. In any case, the legal system of our country, as Professor V. N. Sinyukov, “belongs to a special type of legal civilization”.
The article is devoted to the features of continuity in the Scottish legal system. The relevance of this topic is related to the development of mixed legal systems on the legal map of the world. There are also new needs of legal science and legal practice. The author examines the concepts of continuity and a mixed legal system. He goes on to describe the characteristic features of continuity in the development of the Scottish legal system up to 1707. This is done in the context of the normative, institutional, and doctrinal aspects of these processes. The influence of English common law occupies a special place among the factors of continuity. After that, the author examines the evolution of the legal system of Scotland in the XVIII—XX centuries. The autonomous nature of Scottish law is revealed. It was also based on the Act of Union 1707 and the Scotland Act 1998. The author uses foreign legal experience.
The use of the organic metaphor of transplant to describe the phenomenon of legal borrowing is not unique and has long been reflected in legal history and comparative law.
However, the use metaphor of legal transplant has become widespread only since the 1970s. Despite the fact that the theory of legal transplants is the most controversial and debatable, at the same time it has become the main prerequisite for recognizing the need to develop and improve classical, traditional approaches as well as meaningful expansion of already existing legal categories. One of the modern conceptual approaches in this field is the theory of constitutional transfer of the German scholar G. Frankenberg. In his theory the process of constitutional transfer presented as complex and multistage and also he focuses its impact and subsequent consequences.
Scientific research consists not only of the analysis and generalization of the previously accumulated material. Science is the creation of new knowledge. The birth of new knowledge always opposes stereotypes that hinder the recognition of new ideas. The methodology of legal science points the way to a lawyer-researcher preventing him from getting lost in the sea of legal doctrines, legal dogmas, arrays of legal norms and relations. In this context the author of the article justifies that scientific approaches should be distinguished from research methods. The scientific approach is characterized by a greater breadth of coverage and may include a set of concepts, principles, methods, other means of cognition.
The work was written within the framework of the project of binary lectures of the Faculty of Law of the Lomonosov Moscow State University and the Kutafin University, or rather the module «Comparative Studies in persons» of the course «Comparative Jurisprudence» and is dedicated to the memory of the outstanding comparative scholar Rоdolfo Sacco.
Rоdolfo Sacco was an honorable professor at Turin university department of law whose inestimable contribution to the science of law and comparative law fell on the second half of XX century, the time of intense political and legal changes. The time of his activity can be described as a major milestone of comparative law.
The article examines the main ideas of European comparative law.The article describes and analyses legal formants which were outlined by Rоdolfo Sacco. The authors draw attention to the doctrine of legal formats as a confirmation of the complexity of law, and also pay attention to the peculiarities of using the comparative method in law.
VECTOR OF LEGAL SCIENCE. Comparative Constitutional and Municipal Law
Parliaments, because of their inherent conservatism, are not leaders in implementing information technology. But today it is becoming an urgent necessity. Information technology creates new opportunities for parliamentarians to communicate with each other and with other public authorities, accelerate the legislative process, and increase the effectiveness of parliamentary control. Most parliaments are aware of the need to adapt parliamentary activity to the conditions of digitalization. Today all parliaments have websites; many of them are beginning to introduce interactive communication with citizens, creating special chat rooms and electronic platforms for this purpose; some of them use artificial intelligence in their work. The take-up of information technology is uneven, with Latin American states going much further than their European counterparts on transparency of representative institutions and openness of legislators.
Integration processes developing on the European continent have a significant impact on the legal systems of the Council of Europe and EU member states. The author considers the changes which in this context the European model of constitutional review, accepted in most European countries, is subjected to. All its classical features are subject to erosion. The legal systems in which it operates are no longer strictly hierarchically organized; the national constitution ceases to be the sole and irrefutable benchmark of constitutional review; constitutional courts are largely losing their unique position as bodies authorized to make final decisions on constitutionality, sharing these powers with supranational courts and national courts of general and special jurisdiction. The author substantiates that in conditions of decentralization of constitutional control the legal certainty and coherence of legal order can be ensured only by achieving a coherent understanding of basic constitutional principles within different jurisdictions
The problem of maintenance of pension rights when moving abroad is considered using the example of CIS countries. The legislation of national states and international agreements concluded between these countries are given. It is shown that the regulation of pension rights as acquired rightsis an important basis for regional integration, and also corresponds to the insurance nature of pension rights, which should not depend on citizenship and place of residence.
The article deals with the features of the Scandinavian welfare model. Its main distinguishing characteristic is universalism, which presupposes the protection of the entire population from possible social risks. Receipt of social benefits and services, as a rule, is guaranteed to all residents of the state and is not conditional on employment. Under the current principle of social solidarity, all citizens participate in the financing of the social protection system and make a contribution commensurate with the income received. The system-forming element of the model under consideration is the trust of citizens not only in relation to each other, but also to the state and its politics. The problems that the Scandinavian model faces at the present stage are also considered. According to the author, these problems are determined by globalization, aggravated competition, worsening of the situation on the labor market, demographic changes, as well as the expanding influx of migrants
VECTOR OF LEGAL SCIENCE. Legal Practice
This article discusses the legal aspects of applying the results of genetic testing for the purposes of determining ethnicity. Remarkable in this context is the experience of the State of Israel, where the results of genetic testing are legally used to identify potential immigrants as persons with or without Jewish origin. Apparently, this direction of development of legal regulation contributes to a rethinking of the provision of national legislation regarding the definition of Jewish origin, which was not previously tied to the results of DNA testing. The article analyzes the legal context for identifying potential immigrants as Jews, as well as the right to immigrate in the State of Israel and provides an overview of relevant legal practice. In conclusion, the author examines the key aspects of the influence of law enforcement practice in the field of the use of genetic information on the development of national legislation in this area.
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The article analyzes the issue of legal regulation of biological collections as an object of research infrastructure. The problems associated with the fixation and delimitation of organizational and legal form of subdivisions of scientific organizations, depending on the functions performed, are also considered. On the basis of analysis of doctrinal provisions the classification of collections is proposed.
A comparative analysis of the draft law “On scientific and scientific-technical activity” and normative legal acts regulating the development of research infrastructure in the European Union has been carried out. The necessity of allocating biological resources centers as a separate infrastructure object is explained.
The article is devoted to the study of individual problems of the relatively new phenomenon of legal reality of telemedicine. Conducting an assessment of foreign practices, the author comes to the conclusion that telemedicine is only being introduced into practical healthcare in Russia. The complexity of this phenomenon allows us to talk about the features of regulatory regulators used to implement the mechanism of telemedicine services. The author notes that Telemedicine in the modern sense in Russia is positioned as one of the ways of providing medical care. Attention is drawn to the absence of a legal definition of telemedicine, the legislator, using a narrow approach, refers to the definition of telemedicine services. The heterogeneity of the problems that develop in the process of using telemedicine services allows the author to highlight the most significant ones that require legislative elaboration. The issues of the dynamics of telemedicine services in the pandemic period are touched upon. Possible ways of solving legislative barriers are proposed.
SCIENTIFIC RESEARCH
The regulation of integration processes at the interstate and international levels has common foundations and fundamental differences, taking into account the implemented forms and directions of economic integration. Integration law refers to the classic version of integration between states, while for interregional integration of individual territories of one state, other possibilities of regulatory legal regulation are relevant.
In the article, the author carried out a comparative analysis of the legal systems governing macroeconomic (regional) and interregional integration with the justification of the advantages for the national economy of the development of integration processes between its regions for the growth of economic security and alignment of the spatial development of the country. Regulatory legal norms and forms, directions of inter-regional economic integration of subjects of the Russian Federation, which ensure economic security and socio-economic alignment of regions, are systematized.
In the article, the authors address an urgent issue in the field of public administration — improving the effectiveness of the implementation of the National Security Strategy of the Russian Federation and the Foundations of state Policy in the field of Strategic Planning in the Russian Federation as new basic strategic planning documents. The purpose of the article is to identify the features of building a system of legal provision of information security and the formation of a unified information space, as well as its component — the digital space, in the interests of strategic management in the Russian Federation. The tasks were implemented using general scientific methods (analysis, synthesis, dialectical methods) and the formal legal method. As part of the study of innovations (novelties) of new strategic planning documents, special attention is paid to the problem of information security and public administration in the context of digital transformation. Based on the results of the study, the authors proposed a number of systemic measures to improve the strategic planning system and its priorities, as well as a vector to achieve strategic national priorities, including reformatting the system of state programs of the Russian Federation, as well as organizational and legal measures to implement the strategic national priority “Information Security”, which was first included among the priorities in the new edition of the National Security Strategy of Russia.
In jurisprudence (national and international), various relevant mechanisms and methods have been developed, in particular in matters of human rights, proportionality (proportionality) is used to determine the admissibility of restricting human rights. Today, the principle of proportionality answers a significant number of law enforcement questions about these restrictions, however, there is no single methodology for the mechanism for its implementation for various reasons, and the presence of different methods for applying proportionality leaves room for criticism. The article discusses a number of approaches to proportionality, including: an institutional and material approach, a value approach that recognizes the weighting of interests, an actual approach that allows you to visually assess the justification, in particular, of restrictions on rights from the standpoint of benefits and costs, a method for determining the proportionality of interests through categorization, based on that harmonization occurs by defining the boundaries of the rights through which they are implemented. A variety of approaches and methods suggests that today it is necessary to study these approaches to proportionality from the standpoint of the methodology of pragmatism in legal argumentation in the confrontation of interests. The study concludes that the proportionality test is the best tool for pragmatization, translating values as rather abstract phenomena into facts.
LAW IN HISTORICAL REFRACTION. Legal heritage
LAW IN HISTORICAL REFRACTION. Some Pages of the Past Periodicals
POST SCRIPTUM
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