This article is devoted to modern researches on the Russian realistic jurisprudence. The relevance of the topic of this paper is determined by growing interest in legal realistic movements in general and Russian legal realism in... more
This article is devoted to modern researches on the Russian realistic jurisprudence. The relevance of the topic of this paper is determined by growing interest in legal realistic movements in general and Russian legal realism in particular. Current approaches to the analysis, reconstruction and criticism of legal realism are being developed by leading scholars, that indicates the importance of the realistic paradigm in law. The approaches to understanding Russian legal realism considered in the article, especially in the context of classic American and Scandinavian realistic movements, allow to analyze the trends in the further development of the theory and practice of legal realism in Russia. The subject of the study is the approaches of modern scholars to the phenomenon of Russian legal realism. The purpose of the work is to clarify the reasonableness of the identification of the Russian realistic movement in law. The novelty of the topic consists of the analysis of works that have appeared in the last decade on the subject of Russian legal realism, including a comparison of the principal opinions available in science about the representatives of this movement and the prospects for its recognition as a “classic” realistic movement, along with American and Scandinavian legal realism. Descriptive, formal-logical and comparative legal methods were used as the key research methods, including the analysis of the works of the authors of the English-language collective monograph “Russian Legal Realism” (2018, Springer) and the comparison of American, Scandinavian and Russian realistic movements in jurisprudence. The main conclusions of the article are the necessity for further research of Russian legal thought of the late 19th–early 20th centuries and its development in the 20th–21st centuries in order to distinguish more clearly the Russian version of legal realism among diverse psychological and sociological theories, as well as to compare presumably realistic ideas in Russia with the already acknowledged classic movements of legal realism in the USA and Scandinavia. The significance of such a comparative analysis for justification the existence of a specific Russian movement of legal realism is emphasized. Despite many methodological difficulties, an understanding of Russian legal realism is provided, that distinguishes the works of its predecessors at the end of the 19th century and supporters (theorists and practitioners) in the 20th century: the proposed understanding also actualizes their significant influence on Russian legal realities in the 21st century.
Research Interests: Legal Theory, Legal Realism, Legal interpretation, Legal realism (Law), Legal Realism, Critical Legal Studies, Formalism, and 6 moreScandinavian Legal Realism, Theory of Legal Interpretation, American Legal Realism, New Legal Realism, Realism in legal interpretation, and Continental (Psychological) Legal Realism
© Springer Nature B.V. 2023
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, https://doi.org/10.1007/978-94-007-6730-0_1100-1
M. Sellers, S. Kirste (eds.), Encyclopedia of the Philosophy of Law and Social Philosophy, https://doi.org/10.1007/978-94-007-6730-0_1100-1
Research Interests:
The paper examines the Russian legal realism in the historical aspect and identifies the patterns inherent in the Russian legal system. Prerequisites for the origins of legal realism in North American, Scandinavian, and Soviet societies... more
The paper examines the Russian legal realism in the historical aspect and identifies the patterns inherent in the Russian legal system. Prerequisites for the origins of legal realism in North American, Scandinavian, and Soviet societies are marked. The significance of L.I. Petrazhitsky’s psychological theory of law and considerations about the realistic nature of the Saint-Petersburg school of philosophy of law are analyzed. The author adheres to a broad understanding of the sources of law and explores the realism of approaches rooted in socialist law to solving specific legal problems. It is noted that socialist realism went beyond the method of cultural development of the Soviet man, becoming an integral part of the political and legal doctrine of the state. It is assumed to be permissible in the discourse of socialist legal realism to consider Marxist ideas adapted for revolutionary transformations by V.I. Lenin, I.V. Stalin, and A. Ya. Vyshinsky. Historical circumstances and subjective factors that led to the formation of a fundamentally new community of people in the XX century – the Soviet people – are indicated. It is stated that the historical features of the legal order that existed in the period 1917–1991 remain part of the modern Russian paradigm, and the study of the Russian normativity that has developed over the past century requires a pragmatic approach and a critical understanding of the philosophical and legal views formed during the socialist period.
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The article examines the sources of law in the discourse of Russian legal realism concept. A broad approach to the sources of law is justified and the phenomena of the source and form of law as equal in meaning is considered. The author... more
The article examines the sources of law in the discourse of Russian legal realism concept. A broad approach to the sources of law is justified and the phenomena of the source and form of law as equal in meaning is considered. The author notes the pragmatization of Russian jurisprudence and insufficiency of paying attention only to the texts of normative legal acts. Interpretation of actions to comply with or violate regulatory requirements and criteria for evidence evaluation become more relevant in modern conditions, when the individual regulatory system of the law enforcement actor governs his actions, determines the essence and details of his decision. In order to actualize the pluralism of the source base special attention is paid to post-classical characteristics of modern law enforcement and the ideas of L. I. Petrazhitsky as the founder of the psychological theory of law. A broad understanding of the sources of law in the XXI century allows to identify current sources of regulation and re-evaluate the factors that oblige individuals to obey the will of others. According to the author, law should be considered as a result and method of real interaction of people, generating subjective rights and obligations, and as a form of communication that encourages a person to active realization of acceptable to him sources of law in a particular legal situation. Thе performed comparative analysis of legal realism in North American, Scandinavian and Russian societies allows us to consider legal realism as intermediary between law in books and practical human problems.
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Romashov, R., Timofeeva, E.A., Tonkov, E.N. (2019). Prison Industry: Economy, Law and Information and Communication Technologies. In: Popkova, E., Ostrovskaya, V. (eds) Perspectives on the Use of New Information and Communication... more
Romashov, R., Timofeeva, E.A., Tonkov, E.N. (2019). Prison Industry: Economy, Law and Information and Communication Technologies. In: Popkova, E., Ostrovskaya, V. (eds) Perspectives on the Use of New Information and Communication Technology (ICT) in the Modern Economy. ISC 2017. Advances in Intelligent Systems and Computing, vol 726. Springer, Cham. https://doi.org/10.1007/978-3-319-90835-9_66
Topicality of the studied problem is predetermined by the purpose of complex analysis of the phenomenon of prison industry, which is an independent form of economic and legal activities performed by the subjects, guided by different and rather contradictory priorities, which implement their subjective interests and stand by their subjective rights within communications of the partnership and conflict types. At that, the issue how national peculiarities of establishment and development of prison industry in Russia allow including and adapting it into the sphere of action of international penitentiary law, as well as bringing it into correspondence with objective economic regularities, remain open.
The purpose of the article is to determine and open general tendencies and peculiarities of establishment and development of the institute of prison industry in Russia and foreign countries. The main methods of the research are the methods of historical and rather-legal analysis, as well as the method of inter-sectorial synthesis, which allow for complex consideration of the process of formation of the institutes of prison industry as a structural and functional element of the system of economic and legal relations.
Results: the article presents historical stages of establishment of the institute of prison industry in Russia and foreign countries, study general tendencies and peculiarities of its formation, and determine socio-economic preconditions of emergence of the institute of prison industry as an element of market relations and the object of legal regulation. The article has practical value for specialists in the sphere of penitentiary law and penitentiary economics and those conducting scientific research in the sphere of legal regulation of penitentiary relations and activities in the sphere of penitentiary law and economic planning.
Topicality of the studied problem is predetermined by the purpose of complex analysis of the phenomenon of prison industry, which is an independent form of economic and legal activities performed by the subjects, guided by different and rather contradictory priorities, which implement their subjective interests and stand by their subjective rights within communications of the partnership and conflict types. At that, the issue how national peculiarities of establishment and development of prison industry in Russia allow including and adapting it into the sphere of action of international penitentiary law, as well as bringing it into correspondence with objective economic regularities, remain open.
The purpose of the article is to determine and open general tendencies and peculiarities of establishment and development of the institute of prison industry in Russia and foreign countries. The main methods of the research are the methods of historical and rather-legal analysis, as well as the method of inter-sectorial synthesis, which allow for complex consideration of the process of formation of the institutes of prison industry as a structural and functional element of the system of economic and legal relations.
Results: the article presents historical stages of establishment of the institute of prison industry in Russia and foreign countries, study general tendencies and peculiarities of its formation, and determine socio-economic preconditions of emergence of the institute of prison industry as an element of market relations and the object of legal regulation. The article has practical value for specialists in the sphere of penitentiary law and penitentiary economics and those conducting scientific research in the sphere of legal regulation of penitentiary relations and activities in the sphere of penitentiary law and economic planning.
Research Interests:
The article explores modern problems of law constructing related to the historical features of the legal realism doctrine formation; an analysis of law enforcement practice in public law; the origins and mechanisms of the functioning of... more
The article explores modern problems of law constructing related to the historical features of the legal realism doctrine formation; an analysis of law enforcement practice in public law; the origins and mechanisms of the functioning of the totalitarian approach to the law interpretation are revealed.
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The article substantiates the necessity of introducing into the scientific circulation legal fiction "imperfect judge Veles", describes his typical features and his approaches to the law interpretation, which are entrenched in the Russian... more
The article substantiates the necessity of introducing into the scientific circulation legal fiction "imperfect judge Veles", describes his typical features and his approaches to the law interpretation, which are entrenched in the Russian judicial practice and legal reality.
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The article describes comparative analysis of English precedent and Russian interpretative precedent phenomena, reveals the precedent structure, describes the features of precedent interpretation in England and Russia, the impossibility... more
The article describes comparative analysis of English precedent and Russian interpretative precedent phenomena, reveals the precedent structure, describes the features of precedent interpretation in England and Russia, the impossibility of implementation the English institute of precedent in the Russian law.
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The article describes canons of statutory interpretation as part of the English statutory interpretation doctrine, the author reveals contents of interpretation rules, presumptions, linguistic maxims.
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The article describes the history of development of the English law and the scientific and practical approaches reflecting concepts of judicial interpretation in England, value of interpretation and construction at a stage of application... more
The article describes the history of development of the English law and the scientific and practical approaches reflecting concepts of judicial interpretation in England, value of interpretation and construction at a stage of application the law, the author does the conclusion about formation of the English doctrine of statutory interpretation.
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The article describes the features of English statutory interpretation technique, the structure and contents of the English interpretation doctrine, author actualizes the division of interpretation and construction stages, emphasizes... more
The article describes the features of English statutory interpretation technique, the structure and contents of the English interpretation doctrine, author actualizes the division of interpretation and construction stages, emphasizes value of interpreter’s normative system.
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The article describes scientific and practical approaches that reflect the statutory interpretation concepts in England and Russia, the author does the comparative analysis, actualizes the significance of the interpretation in statute... more
The article describes scientific and practical approaches that reflect the statutory interpretation concepts in England and Russia, the author does the comparative analysis, actualizes the significance of the interpretation in statute application stage, reveals similar aspects and distinctions of approaches to judicial interpretation.
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The article describes the precedent institution in a structure of the English doctrine of interpretation of a law. The author discusses its origins, correlation with a statute, value for the English law, and specifics of its application... more
The article describes the precedent institution in a structure of the English doctrine of interpretation of a law. The author discusses its origins, correlation with a statute, value for the English law, and specifics of its application in the legal practices.
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The article describes scientific and practical approaches , which reflect the statutory interpretation concepts in modern Russia, and compares them with the English statutory interpretation doctrine. The significance of the interpretation... more
The article describes scientific and practical approaches , which reflect the statutory interpretation concepts in modern Russia, and compares them with the English statutory interpretation doctrine. The significance of the interpretation in laws application stage is updated, the notion «construction-in-application» is introduced and proved, similar aspects and distinctions of approaches to law interpretation in Russia and England are revealed.
Research Interests:
See in English: Contents (p. 7-8) and Preface (p. 15-20). The monograph presents materials of authors’ long-term research of Legal Realism phenomenon. The main attention is paid to American, Scandinavian, Russian versions of the... more
See in English: Contents (p. 7-8) and Preface (p. 15-20).
The monograph presents materials of authors’ long-term research of Legal Realism phenomenon. The main attention is paid to American, Scandinavian, Russian versions of the realistic approach to law which actualized the significance of factual experience, behavior of legal actors and became the response of legal science to the excessive formalism, abstractness of law in the USA, Sweden, Russia in the beginning and middle of the 20th century. The foundations of Russian Legal Realism and its development in the 21st century are studied in detail. Other variants of legal realism are also indicated, as well as the attempts currently being made to reconstruct and rethink the history of the realistic approach in jurisprudence. The book is considered to be the first comprehensive work on legal realism in Russian science with an overview of classical and modern variants of realistic approach to law, an analysis of the ideas of leading representatives of legal realism and a glossary.
The monograph is addressed to legal scholars, lecturers, postgraduates, students, practicing lawyers and to all interested in problems of the theory of law, philosophy of law, history of doctrines of law and state.
The monograph presents materials of authors’ long-term research of Legal Realism phenomenon. The main attention is paid to American, Scandinavian, Russian versions of the realistic approach to law which actualized the significance of factual experience, behavior of legal actors and became the response of legal science to the excessive formalism, abstractness of law in the USA, Sweden, Russia in the beginning and middle of the 20th century. The foundations of Russian Legal Realism and its development in the 21st century are studied in detail. Other variants of legal realism are also indicated, as well as the attempts currently being made to reconstruct and rethink the history of the realistic approach in jurisprudence. The book is considered to be the first comprehensive work on legal realism in Russian science with an overview of classical and modern variants of realistic approach to law, an analysis of the ideas of leading representatives of legal realism and a glossary.
The monograph is addressed to legal scholars, lecturers, postgraduates, students, practicing lawyers and to all interested in problems of the theory of law, philosophy of law, history of doctrines of law and state.
Research Interests: Legal Theory, Sources of Law, Legal Realism, Legal interpretation, Legal Philosophy, and 13 moreLegal realism (Law), Judicial Decision-Making, Judicial Discretion, Judicial Decision Making, Legal Realism, Critical Legal Studies, Formalism, Legal Certainty, Scandinavian Legal Realism, Law and Language, Semiotics of Law, Theory of Legal Interpretation, American Legal Realism, New Legal Realism, Realism in legal interpretation, and Continental (Psychological) Legal Realism
The present volume comprises papers presented at the Special workshop “The Experience of Law” within the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR) held in Lucerne, Switzerland,... more
The present volume comprises papers presented at the Special workshop “The Experience of Law” within the 29th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR) held in Lucerne, Switzerland, during July 7–12, 2019. The contribution brought together 13 researchers from 5 countries in order to view an experience of law from different epistemological perspectives among them phenomenological hermeneutics and postmodernism, psychoanalysis and neo-Kantianism, legal realism and psychological theory of law. The volume reflects the wide range of topics that were addressed by contributors: from general phenomenology of law and lawlessness to philosophy of liberation, from genesis and experience of normativity to psychological foundations of legal validity. What is common to all authors is an attempt to take a fresh look at the basic question of the philosophy of law and consider law not as an object of our cognition or our technical domination, but as something that happens to us.
Видання об’єднує статті та есеї, представлені на спеціальному семінарі «Досвід права» в рамках 29-го Всесвітнього конгресу Міжнародної асоціації філософії права та соціальної філософії (IVR), який проходив у м. Люцерн (Швейцарія) з 7 по 12 липня 2019 р. У підготовці тому взяли участь 13 дослідників з 5 країн, зацікавлених в осмисленні досвіду права з різних епістемологічних перспектив, серед яких феноменологічна герменевтика і постмодернізм, психоаналіз і неокантіанство, правової реалізм і психологічна теорія права. Коло проблем, до яких звертаються автори, досить широке: від загальної феноменології права і безправ’я до філософії звільнення, від генезису і досвіду нормативності до психологічних підстав правової валідності. Об’єднує всі представлені тексти спроба поглянути на основне питання філософії права у радикально новий спосіб і мислити право не як об’єкт нашого пізнання або технічного панування, а як те, що відбувається з нами.
Видання об’єднує статті та есеї, представлені на спеціальному семінарі «Досвід права» в рамках 29-го Всесвітнього конгресу Міжнародної асоціації філософії права та соціальної філософії (IVR), який проходив у м. Люцерн (Швейцарія) з 7 по 12 липня 2019 р. У підготовці тому взяли участь 13 дослідників з 5 країн, зацікавлених в осмисленні досвіду права з різних епістемологічних перспектив, серед яких феноменологічна герменевтика і постмодернізм, психоаналіз і неокантіанство, правової реалізм і психологічна теорія права. Коло проблем, до яких звертаються автори, досить широке: від загальної феноменології права і безправ’я до філософії звільнення, від генезису і досвіду нормативності до психологічних підстав правової валідності. Об’єднує всі представлені тексти спроба поглянути на основне питання філософії права у радикально новий спосіб і мислити право не як об’єкт нашого пізнання або технічного панування, а як те, що відбувається з нами.
Research Interests:
See one of the first mentions of "Russian Legal Realism" concept in world science in Chapter 19: "Russian legal realism and its influence on the interpretative conception". See "Contents" and "Abstract" in English. In the monograph... more
See one of the first mentions of "Russian Legal Realism" concept in world science in Chapter 19: "Russian legal realism and its influence on the interpretative conception".
See "Contents" and "Abstract" in English.
In the monograph author considers history, structure, contents and application of the English statutory doctrine. The main attention is paid to modern judicial approaches to interpretation in England, to value of rules, presumptions, linguistic maxims of interpretation. The role of judicial precedents in practice of interpretation is analyzed, the developed characteristic of Interpretation Acts 1850, 1889, 1978 is given. In the review of English legal philosophy sources and evolution of ideas of appropriate interpretation of the law are described, impacts of thinkers on the theory and practice of interpretation come to light: St. Augustine, St. Thomas Aquinas, H. Bracton, F. Bacon, T. Hobbes, J. Locke, W. Blackstone, J. Bentham, J. Austin, B. Russell, L. Wittgenstein, J. Wisdom, J. L. Austin, J. Rawls, H. L. A. Hart, R. Dworkin, J. Finnis, L. Fuller, R. Cross, F. Bennion. Research contains modern approach to interpretation, acquaints with an English-speaking conceptual framework, represents domestic legal institutes in methodological parameters equal with the foreign doctrine. Studying of English experience can become the effective tool for a new view on the Russian conception of the statutory interpretation. In the book possibility of implementation of experience of the English doctrine of interpretation of the law is estimated at the Russian law, in comparative-historical aspect stages of formation of the Russian law interpretation doctrine are considered. The present monograph gives a complex research of the statutory interpretation in England for the first time in Russian-speaking literature.
The book is meant for executors of law, teachers, graduate students, students of the legal higher education institutions, all interested in legal theory and legal philosophy.
See "Contents" and "Abstract" in English.
In the monograph author considers history, structure, contents and application of the English statutory doctrine. The main attention is paid to modern judicial approaches to interpretation in England, to value of rules, presumptions, linguistic maxims of interpretation. The role of judicial precedents in practice of interpretation is analyzed, the developed characteristic of Interpretation Acts 1850, 1889, 1978 is given. In the review of English legal philosophy sources and evolution of ideas of appropriate interpretation of the law are described, impacts of thinkers on the theory and practice of interpretation come to light: St. Augustine, St. Thomas Aquinas, H. Bracton, F. Bacon, T. Hobbes, J. Locke, W. Blackstone, J. Bentham, J. Austin, B. Russell, L. Wittgenstein, J. Wisdom, J. L. Austin, J. Rawls, H. L. A. Hart, R. Dworkin, J. Finnis, L. Fuller, R. Cross, F. Bennion. Research contains modern approach to interpretation, acquaints with an English-speaking conceptual framework, represents domestic legal institutes in methodological parameters equal with the foreign doctrine. Studying of English experience can become the effective tool for a new view on the Russian conception of the statutory interpretation. In the book possibility of implementation of experience of the English doctrine of interpretation of the law is estimated at the Russian law, in comparative-historical aspect stages of formation of the Russian law interpretation doctrine are considered. The present monograph gives a complex research of the statutory interpretation in England for the first time in Russian-speaking literature.
The book is meant for executors of law, teachers, graduate students, students of the legal higher education institutions, all interested in legal theory and legal philosophy.
Research Interests:
The authors-participants of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) presented a review of the world forum held on July 03–08, 2022 in Bucharest, Romania, on the basis... more
The authors-participants of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR) presented a review of the world forum held on July 03–08, 2022 in Bucharest, Romania, on the basis of the Dimitrie Cantemir Christian University. The main organizers of the congress were representatives of the Romanian section of IVR and the Romanian Association for Philosophy of Law: C. Dumitrescu, I. Craiovan, M. Badescu, etc. Initially set for 2021, the congress commemorated G.W.F. Hegel and J. Rawls and their papers – respectively, “Philosophy of Law” (1821) and “Theory of Justice” (1971), – with the leading theme “Justice, Community and Freedom”. More than four hundred people took part in the congress, including the world’s leading researchers of the philosophy of law and social philosophy, such as R. Alexy, B. Bix, K. Günther, S. Kirste, B. Leiter, K. Papageorgiou, M. Sellers, T. Spaak, etc. The most widely represented scientific institutions were from Austria, Argentina, Brazil, Great Britain, Germany, Poland, Portugal, Serbia, USA, France, Croatia, Sweden, South Korea, Japan, etc. Due to the ongoing COVID-19 pandemic, international political circumstances and logistic difficulties, some researchers, including Russian scholars, were unable to fully participate in the congress. Nevertheless, most participants were able to meet safely in Bucharest and productively discuss current philosophical and legal issues in face-to-face communication, among which the following can be emphasized: “existence and foundations of law”, “predictive justice”, “human rights”, “legal realism”, “empirical approaches in the philosophy of law”, “justice”, “dignity”, “equality”, “morality”, “normative systems”, “legal argumentation”, “legitimation", “judicial activity”, “epistemology”, “language of law”, etc. The Congress program was divided into ten plenary lectures, sixty-four main (“Special Workshops”) and six additional (“Working Groups”) sections, two lectures by IVR prize winners (Book Prize and Young Scholar Prize), two special panels (IVR President’s and Romanian IVR Section’s) and a presentation of the IVR Encyclopedia. The prevalent working language of the world forum was English, but some sections allowed the use of German, Spanish, Portuguese, etc. Special attention in the review is paid to B. Leiter’s opening plenary address “Some Realism about Political and Legal Philosophy”, Special Workshop “Legal Realism in Russia”, lecture of R. Alexy as the winner of the IVR Book Prize in 2022, presentation of the IVR Encyclopedia, which is being prepared for publication in 2023, as well as the general results of the congress in Bucharest and prospects for further IVR congresses.
FOR CITATION:
Tonkov, D.E., Tonkov, E.N. (2022). "Justice, Community and Freedom": Review of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR2022). Trudy Instituta gosudarstva i prava RAN — Proceedings of the Institute of State and Law of the RAS, 17(6), pp. 206–226. DOI: 10.35427/2073-4522-2022- 17-6-d.tonkov-e.tonkov
FOR CITATION:
Tonkov, D.E., Tonkov, E.N. (2022). "Justice, Community and Freedom": Review of the XXX World Congress of the International Association for the Philosophy of Law and Social Philosophy (IVR2022). Trudy Instituta gosudarstva i prava RAN — Proceedings of the Institute of State and Law of the RAS, 17(6), pp. 206–226. DOI: 10.35427/2073-4522-2022- 17-6-d.tonkov-e.tonkov