scholarly journals Russian Legal Mentality: Procedural Law vs. Customary People’s Justice

Lex Russica ◽  
2021 ◽  
Vol 74 (10) ◽  
pp. 100-112
Author(s):  
S. N. Gavrilov

Russian customary law is a unique source for the study of the Russian traditional legal mentality. It is a kind of a cast from the people’s “instinctive right-feeling” (I. A. Ilyin), a product, a repository and at the same time a generator of legal mental attitudes. The results of research in the field of cognitive linguistics confirm the connection between thought processes and language. The author proceeds from the fact that the national language is an appropriate basis; and the means of linguistics are an effective tool for studying the national legal culture, legal mentality, legal consciousness. The paper describes separate approaches to the interpretation of the concepts of “mentality” and “mindset”, proposes a definition of the concept of “Russian legal mentality” and identifies the category of those possessing it.The procedures for considering and resolving cases according to the norms of secret, written, pre-reform (before 1864) and post-reform (after the Judicial Reform of 1864) process, fixed by positive law (legislation), not only in form, but also in the approach itself, differed significantly from the traditions of popular justice as a “branch” of Russian customary law.The main attitudes of the Russian traditional legal mentality are described in procedural aspects that are significant for the perception of law and legislation. Russian traditional legal mentality is reconstructed in order to identify the key mental attitudes inherent in the tradition of Russian customary law, in contrast with the approaches natural for the Western legal tradition. This is done in the context of the following phenomena: the ideal of justice, procedural order, legal qualification, the value of evidence, the purpose and result of justice.

Author(s):  
Оlena Shtefan ◽  

The subject of this article was one of the fundamental and debatable provisions of the doctrine of civil procedural law - its subject. The author on the basis of the analysis of scientific sources, the legislation carried out the retrospective analysis of formation and development of scientific thought concerning definition of a subject of civil procedural law. The paper identifies two main approaches to understanding the subject of the industry and elements of its structure. Analyzing the "narrow" approach to defining the subject of civil procedural law and certain areas of its coverage in the works of scholars, the author substantiates the position on the relationship between procedural activities and social relations that arise between the court and the parties. Particular attention is paid to the history of inclusion in the subject of civil procedural law enforcement proceedings. The author's position on the subject and system of civil procedural law is substantiated. The essence of the "broad" approach to the definition of the subject of the industry by including in its structure of non-jurisdictional forms of legal protection is revealed. The essence of two opposite tendencies in scientific researches concerning structure of a subject of civil procedural law is revealed: the first tendency is reduced to expansion of a subject at the expense of inclusion in it of economic procedural law, at ignoring independent character of this branch of law; the second - the narrowing of the subject of civil procedural law by removing from its structure of enforcement proceedings, the relations arising in the consideration of labor cases. The connection between the definition of the subject of civil procedural law and the jurisdiction of the court defined in the legislation is substantiated. It is proved that the tendency to narrow the subject of civil procedural law was embodied in the legislation of the country as a result of judicial reform in 2016, which led to conflicts in legislation and problems in law enforcement. Based on the theoretical model of determining the subject of legal regulation and using the analogy of determining its structure, the elements of the structure of the subject of civil procedural law are distinguished and its definition is formulated.


Author(s):  
Valentina Yu. Smorgunova ◽  
Aleksandra A. Dorskaia ◽  
Il’ia L. Chestnov

The paper uses historic and legal materials to analyse the contemporary theories that describe the correlation of customary law and legislation. The authors identify the applicability of these theories in studying regulation of Siberian peoples in the Russian Empire. The paper explores the role of the historical school of jurisprudence and the normative theory of law in determining the interplay between customary law and legislation in the 19th and 20th centuries in Russia. The authors make the conclusion that the implementation of judicial reform of 1864 was impeded in Siberia due to the state giving preference to customary law in governing the relations not regulated by legislation


Author(s):  
Mariia Sirotkina ◽  

The article is turned out to a scientific search for the concept of "a reconciliation agreement between the victim and the suspect or accused" through the study of the essence of reconciliation and role in criminal proceedings thereof. The author notes that criminal procedural law (until 2012) had been proclaimed another approach to reconciliation between victim and suspect, not involved a dispute procedure as a conflict, the result of which can be reached by compromise and understanding through reconciliation. It is stated that one of the ways to resolve the legal conflict in committing a criminal offense was the opportunity to reach a compromise between the victim and the suspect (the accused) by concluding a reconciliation agreement between them, provided by the Code of Сriminal Procedure of Ukraine (2012). The main attention is placed on the shortcoming of the domestic criminal procedure law which is the lack of the concept of "a reconciliation agreement between the victim and the suspect or the accused", which can be eliminated only through examining the essence or legal nature of reconciliation in criminal proceedings. Taking into consideration the current legislation and modern views on the institution of reconciliation in criminal proceedings, the author's definition of the concept of "a reconciliation agreement" is proposed. Thus, “The conciliation agreement is an agreement in criminal proceedings concluded between the victim and the suspect or the accused person on their own initiative in relation to crimes of minor or medium gravity and in criminal proceedings in the form of private prosecution, the subject of which is the compensation of harm caused by wrongdoing or committing other actions not related to compensation for the damage that the suspect or the accused is obliged to commit in favor of the victim, in exchange for an agreed punishment and sentencing thereof or sentencing thereof and relief from serving a sentence with probation, as well as the statutory consequences of conclusion and approval of the agreement".


Author(s):  
Полина Игоревна Калинина

Данная статья посвящается ограничительному характеру обеспечительных мер в Арбитражном суде. В работе даётся законодательное определение институту обеспечительных мер, а также указываются основные признаки, закреплённые в процессуальном законе. Поскольку уделяется внимание ограничительному характеру, как признаку мер, в работе приводятся виды обеспечительных мер, через которые проводится анализ и исследование данного признака, характеризующего данные меры. This article is devoted to the restrictive nature of interim measures in Arbitration. The paper provides a legislative definition of the institution of interim measures, as well as specifies the main features enshrined in the procedural law. Since attention is paid to the restrictive nature as a feature of measures, the paper presents the types of interim measures through which the analysis and research of this feature that characterizes these measures is carried out.


2020 ◽  
Vol 6 (1) ◽  
pp. 713-722
Author(s):  
Vincent Boswijk ◽  
Matt Coler

AbstractA commonly used concept in linguistics is salience. Oftentimes it is used without definition, and the meaning of the concept is repeatedly assumed to be self-explanatory. The definitions that are provided may vary greatly from one operationalization of salience to the next. In order to find out whether it is possible to postulate an overarching working definition of linguistic salience that subsumes usage across linguistic subdomains, we review these different operationalizations of linguistic salience. This article focuses on salience in sociolinguistics, cognitive linguistics, second-language acquisition (SLA), and semantics. In this article, we give an overview of how these fields operationalize salience. Finally, we discuss correlations and contradictions between the different operationalizations.


2015 ◽  
Vol 15 (4) ◽  
pp. 665-699 ◽  
Author(s):  
Noemi Gal-Or

The article studies the concept of human security (hs) as embraced by the un General Assembly and Secretary Generals, and its instrumentality in the promotion of a customary international crime of global terrorism. Such a crime exists in the opinion of the Appellate Chamber of the Special Tribunal for Lebanon. Regarding terrorism in international criminal law (icl), not in armed conflict, I maintain that the concept of hs has been pivotal in furthering the “criminalisation” of terrorism in matters peace and security. I submit that (i) that the absence of a universally agreed upon definition of (global) terrorism does not suffice to detract from the finding that such a transnational crime exists, and (ii) in addition to the various and largely agreed constitutive elements of customary law, normative paradigmatic developments – here in the case of terrorism, and in the past two decades – have significantly supported this customarisation trend.


2020 ◽  
Vol 72 (2) ◽  
pp. 236-242
Author(s):  
K. Galiyeva ◽  
◽  
S. Isakova ◽  

The article is devoted to the definition of concept in modern linguistics. Various points of view and definitions of the basic concepts are considered: "concept", "conceptual sphere", "content". The aim of the article is to describe and explain such a complex unit as a concept from the point of view of linguistics. The object of research is studied in its various manifestations, the combination of verbal and nonverbal means of information expression in the conceptual sphere is revealed. the relevance of this topic is due to the need for a detailed consideration of the concept of concept based on the works of prominent scientists and linguists. Researchers treat the concept as a cognitive, psycholinguistic, linguocultural, cultural and linguistic phenomenon. The concept is an umbrella term because it "covers" the subject areas of several scientific fields: primarily cognitive psychology and cognitive linguistics.


Author(s):  
Moreno Bonda

The investigation of medieval literature poses a number of challenges, even to native speaker researchers. Such difficulties are related to (a) linguistic – syntactical and lexical – obstacles, (b) to the ability to recognise dense networks of interdisciplinary references and, (c) mainly to the cognitive challenges posed by “unfamiliar modes of expression”. The aim of this research is to discuss a methodological approach to deal with these unusual manners of composition, technically known as modal difficulty, in medieval literature. The theoretic setting is represented by Davide Castiglione’s monographic study Difficulty in Poetry (2018) and the specific definition of modal difficulty elaborated by James E. Vincent in the premise of his treatise on American poetry (2003). A study case illustrative of challenges in medieval literature analysis has been chosen to illustrate the speculative reasoning: the references to the celebrated mathematician Leonardo Fibonacci (1170–1242) – known for having introduced the Arabic numbers to the Europeans – in Dante Alighieri’s Divine Comedy. Preliminarily, the author discusses unfamiliar mathematical notations implemented from the 13th to the 18th centuries. Subsequently, adopting cognitive linguistics principles and hermeneutic as methodological tools, several veiled citations of the mathematician’s cogitations – such as the chess comparison in Paradise XXVIII, 91–93 and the quadratic expression in Paradise XXVII, 115–117 – are deciphered and illustrated. The analysis of Dante’s cognitive frame indicates that the recourse to Fibonacci’s formulas is functional to depict the incommensurable multitude of the divine in words. In the conclusions, the case studied is adopted as a model to illustrate how the reflection on unusual forms of expression could be employed to investigate ancient literary texts. A preliminary analysis of the frame-notation relation could help, as an example, to recognise mathematical formulas that were expressed in a verbal and non-symbolic notation.


2018 ◽  
Vol 6 (1) ◽  
pp. 43-70
Author(s):  
Gaëtanelle Gilquin ◽  
Andrew McMichael

Abstract This paper empirically tests a number of criteria proposed in the literature to identify the prototype of a linguistic category in order to see how they compare with each other - and what this can tell us about the concept of prototypicality. The item under investigation is through, and the starting point is an intuition-based definition of prototypical through. The different criteria are frequency of use, ease of elicitation, historical origin, patterns in L1 acquisition and patterns in L2 use. All instances of through retrieved for testing each of these criteria are classified according to a taxonomy couched in Construction Grammar terms. The findings confirm the special status of the intuition-based prototype of through (the [X moves through Y] construction) according to some of the criteria, but also reveal divergent results, in particular a central use of the instrumental prepositional phrase with through. Conclusions are drawn about the theoretical concept of prototypicality and its possible multi-faceted nature, and more generally about the place of empirical evidence in Cognitive Linguistics.


Author(s):  
Nan Gong ◽  
I. I. Fedorov

The formation of the Russian procedural legal system is closely connected with its unique historical evolution. Russian Russian culture According to the Norman theory of the origin of the Russian nation, the Scandinavian culture is the most important source of early Russian culture. During the chaotic period of the tribe at the stage of primitive society, the Norman Varian was invited to Russia to reconcile the tribes of Russia and manage them, and this brought the Germanic custom to regulate the socio-economic and legal relations of various tribes. Since the formation of the ancient state of Russia, the ruling class has constantly strengthened the drafting of new laws and regulations, but customary law still dominates the legal system of the state. At the same time, ordinary norms in the system of customary law as a quasi-legal norm between morality and law have become an integral organic component of social customs and norms at all stages of Russian social development.During the period of Ancient Russia, the common custom of the Slavic people and the Norman Customary Law had a profound impact on the social life of ancient Russia. From the beginning of the 9th to the 17th century, customary law existed as the main legal source for regulating social relations in the late period of the development of Russian primitive society and in the earlier time of feudal society. His coercive force was based on the conviction that was widespread in the social community during this period, that is, "existing customs denote a reasonable basis". With the formation of the East Slavic state, the rulers began to work on drafting new legal norms, but inheritance is still mainly based on customs based on the clan system. As a result, as a rule of conduct recognized and guaranteed by the state, traditional customs gradually acquired a legal nature, and after that, positive law was formed. "Russkaya Pravda" is the most representative legal collection in the early years of the Russian feudal society, "The Truth of Ross", which was compiled according to the customs of the Eastern Slavs, and is the very fi rst positive law of ancient Russia.Before the appearance of formal law, customary law always played a role and coercive force as legislation, but the self-defense and insane methods of revenge obtained from it also caused social unrest. In order to stop personal self-defense and self-arbitrariness, as well as to strengthen ties between different regions, it is necessary to use the power of common law to unite the Principality into a whole. Although the new law does not exclude the original good customary norms, if there are no necessary penalties for violations, it will be destructive for the law. Therefore, it is necessary to give customary law a legal meaning and a compelling force, without changing the existing content of customary law.I must say that the German customs and the traditional customs of the Slavic people are intertwined in the historical codifi cation of Russian procedural law, forming a unique historical path of development of the procedural legal system of ancient Russia. Although national customs were recognized by the state in the form of positive law with the help of " Russian Truth”, and became the norm of justice and social norm on the basis of the guarantee of national coercive force, but this did not change the essence of customary law, but the form of positive law was given to it. As the modernization of the Russian judicial system moves into modern times, generations of legislators and lawyers are focusing on the study of national legal traditions and history, trying to discover the natural laws governing the development of the Russian legal system, and are constantly trying to make progress in the modern and modern process of judicial reform. The harmony of legislation, the borrowing of laws and national customs to a certain extent ensured a reasonable adjustment of national laws and norms of customary law.


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