The importance of addition, competition, collisions of law principles for enforcement and other types of legal activities

The subject of this research is the problem of combining (interrelation) of various principles of law used in the framework of law enforcement and other types of legal activity.The purpose of the study is to confirm or refute the hypothesis that the principles of law can not only complement each other, but also "collide" with each other when they are used in the framework of legal activity.The research methodology includes dialectics, systems approach, specific sociological methods, culturological and theoretical-sociological analysis, formal legal method. The author describes the degree of scientific elaboration of the problem in foreign and Russian studies, including works devoted to such related topics as the functions of the principles of law and the system of principles of law, as well as the opinions directly on the issue of R. Dworkin and A. Barak.The main results, scope of application. The author substantiates the presence of at least three ways of combining (interconnecting) the principles of law: (1) addition – the concerted action of several principles; (2) competition – limiting the operation of one principle to another; (3) collision – direct contradiction of one principle to another, their mutual exclusion. The definition of factual circumstances, the choice of applicable rules and their interpretation by court or other enforcement official can be influenced by ideology underlying the prevailing practice or the enforcer's own position. The specificity of a particular ideology is correlated by the author with the use of one or another combination of principles of law when making a law enforcement decision. It is shown in the article with specific examples of so-called "complex cases" from the practice of Russian higher courts. Complementing the principles of law is the predominant way of their relationship, used in law enforcement. It contributes to the preservation of the unity of the system of law. At the same time, the consistent implementation of one principle can limit the possibilities for the implementation of others. It leads to the fact in the process of law enforcement that it is often necessary to make a choice in favor of one of the principles within the framework of their competition. This choice is determined by several factors, including not only the established practice (law enforcement customs and precedents), but also the current social context, the position and interests of the law enforcement officer and the participants in the case. Finally, in some cases, situations are possible when the principles of law are mutually exclusive, come into conflict with each other. This, in particular, can occur when the principles of law belong to different systems (subsystems) of law or reflect the peculiarities of the legal ideology of different historical periods. The article identifies certain patterns of combining the principles of law, examines the importance of this topic for studying the issues of legal monism and legal pluralism, shows the importance of complementarity, competition and conflict of principles of law not only for the law enforcement process, but also for the knowledge of law, criticism of law, lawmaking, powerless implementation rights.Conclusions. Although within the framework of the traditional approach for domestic jurisprudence, the essence of law is associated with the interests and property relations reflected in the law, legal ideology has a relatively independent meaning nevertheless. A certain duality is inherent in legal activity, as a result of which the problems of combining interests are expressed precisely through various options for combining the principles and norms of law. It is proved that the system of principles of law is a complex system in which the same principles can be used in various combinations with each other.

To the question about the historical genesis of patrimonial law of the bashkirs

The article discusses the issue of the formation and development of patrimonial law of the Bashkirs before the accession of Bashkiria to the Russian state. Guided by the pluralism of approaches to legal thinking, the author made an attempt to reconstruct the historical genesis of the patrimonial law of the Bashkirs, as well as the sources of this law in the Golden Horde and post-Horde periods. Based on the analysis of general historical sources, Bashkir legends and chronicles, as well as the corresponding Horde legal monuments, the following conclusions are substantiated: firstly, starting from about the middle of the XIV century on the territory of Bashkiria, those social and political conditions that determined the content of the customary legal norms of the patrimonial law of the Bashkirs began to take shape; secondly, due to the influence of the political and legal ideology of "chingizism", the Bashkirs form a legal myth that the tribal law has its source in the establishment of Chinggis Khan; thirdly, in the legal system of the Golden Horde and in the post-Horde Chingizid khanates, which largely inherited the legal traditions of the first, there were no external forms of expression of law, with the help of which direct state sanctioning of the customs of the Bashkirs associated with clan land tenure was carried out. At the same time, it seems that, by the nature of the prescriptions, the khan's shert and tarkhan labels could indirectly sanction the patrimonial law of the Bashkirs.

Leading Russian legal theorist is 80 years old. For the anniversary of V.M. Syrykh

Dedicated to the 80th anniversary of the famous legal scholar Vladimir Mikhailovich Syrykh, the author of over 40 monographs, textbooks, teaching aids, many hundreds of scientific articles and other materials. The scientists contribution to legal science is analyzed. We focus on the methodology of the theory of law, method structure, content of the materialist theory of law, etc. The exceptional contribution of the scientist to preparation and publication of the Encyclopedic Dictionary Legal Science and Legal Ideology of Russia is distinguished. The ideas and assessments of the author's recent historical and legal monographs on the Soviet regime, the Red Terror, and Stalinist repressions are illustrated.

Human Rights in the Context of Asian and European Legal Values

This article substantiates the need to consolidate human rights through various international legal mechanisms, including regional conventions on human rights that reflect specific legal and cultural values. The authors analyzed the Oriental legal values that differ from those in the Occidental. Borrowed elements of foreign culture and standard legal norms do not provide effective implementation of international documents at the national level. In fact, a lot of contemporary conflicts originate in the gap between the official legal ideology and the traditional legal consciousness, which is typical of most Asian countries. The interdisciplinary and civilizational (sociocultural) approaches revealed that most Shanghai Cooperation Organization countries adhere to the so-called Asian values, e.g. collectivism; priority of family, clan, and nation interests; idealization of the authorities; detachment from active political and legal life, adherence to moral norms, etc. The authors believe that, along with the Universal Declaration of Human Rights, there may be regional concepts and international regional acts based on civilizational identity, historical memory and experience. Eurasian countries need a new concept of human rights, which will combine universal and Asian legal values, e.g. priority of the community and state over the individual; the advantage of public order over the personal rights and freedoms; common wellbeing; significance of moral and religious rules; admiration for strong political leaders, etc. This concept will make it possible to integrate Asian mentality, lore, and national philosophy into standard human rights. The concept might help to resolve various conflicts that occur between global legal ideology and traditional legal mentality of most Asian societies.

Judicial power development issues in Russian conservative legal ideology during the second half of the XIX-th century

The political and legal ideology of Russian conservatism becomes more and more popular in modern conditions. This scientific work is devoted to the study of the political and legal positions of Russian conservatives in the second half of the 19th century, who made a significant impact on the development of legal science. The problem of judiciary development is taken as a basis. The purpose of the study is to analyze the positions of Russian scholars and public and political figures who proposed a special concept of views regarding the place and role of the judiciary in the state mechanism of the Russian Empire during the second half of the 19th century. The hypothesis of the study is the presentation of a special approach to the consideration of conservative ideology in relation to the creation and organizational activity of the judicial system through the prism of national problems that developed in the Russian Empire during the second half of the 19th century. The methodological basis of the study is made up of general scientific, private, as well as special methods of cognition.

Legal enlightenment in Russia: modern problems of theory and practice

The article examines the history of the development of legal enlightenment in Russia, its modern legal regulation, as well as the theoretical basis associated with its implementation. Revealing the paramount importance of legal enlightenment for the formation of civil society and state of law, the authors point out the need to create a unified system of normative legal acts regulating this activity. Currently, the legal regulation of the activities of various subjects of legal enlightenment is unsystematic, since at different levels there are a large number of unrelated legal acts, which makes it difficult to achieve the goals of legal enlightenment. Among other things, the study carried out a comprehensive theoretical analysis of activities in legal enlightenment, on the basis of which the authors, on the one hand, conclude about the unity of rational and irrational moments in this activity, on the other, about the primary impact on the emotional-volitional side of a person in the process of legal enlightenment. Linking the structure of legal enlightenment with elements of legal awareness legal ideology and legal psychology, the authors point to the unity of legal training and legal literacy with in the framework of legal enlightenment, offering their definition of the concept of legal enlightenment.

The legal nature of soft law acts of the Council of Europe

The article examines the effectiveness of soft law as a regulator of legal relations between the member states of the Council of Europe. Existing approaches to the definition of soft law are analyzed.Author proposes to separate from the traditional conception of international law as a system of universally binding norms developed by states, taking into account postmodern trends in the transformation of national legal systems. Soft law is recognized as a real form of modern international law that has legal consequences. The article appoints the sources that make up the soft law within the legal system of the Council of Europe.The influence of soft law acts of the Council of Europe bodies on the legislation of Ukraine is investigated. Pros-pects for the development of soft law in the research area are determined.The role of “soft law” acts is presented on the example of the acts of the Venice Commission (European Com-mission for Strengthening Democracy through Law) and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, which are specialized agencies of the Council of Europe.Examples of the impact of soft law acts of the Council of Europe on the national legal systems of the partici-pating countries are analyzed. Their axiological influence on the democratization of national legal systems and the formation of human-centered legal ideology in Europe has been determined. The article determines the orientation of the parliaments and governments of the member states of the Council of Europe on the acts of soft law of its bodies in the legislation. The place of soft law acts of the bodies of the Council of Europe in the system of sources of international and national law is considered through the prism of the sociological school of law.

Typologization of legal families: rethinking classification criteria and species composition

The scientific article is devoted to rethinking the criteria for typologization of legal families and their species composition in the modern world. Based on the analysis, it is concluded that when unifying different approaches to the classification criteria for dividing legal systems into legal families, it is important to compare all the main elements of legal reality, since even the commonality of the main form of law (if there are differences in the applied legal ideology or the specifics of the implementation of law) will not become the basis for assigning certain legal systems to the same legal family. That is, the universality of the construction of the legal system type (legal family) consists in the plane verification of common features of the legal ideology, system of law and legal practice of various legal systems. Although it is quite obvious that there can not be absolutely identical features in the social phenomena of different social systems (meaning, different states), but a relative meaningful and formal community is nevertheless present. And it is precisely this relative commonality of all the basic elements of the legal system classical triad that makes it possible to speak about the assignment of two or more national legal systems to the same legal family (type of legal system). This approach will avoid fragmentation in the identification of classification criteria of the legal family. Attention is drawn to the fact that due to the processes of legal convergence, the boundaries of even relatively well-established legal systems are "blurred". Thus, in a Romano-Germanic family, discussions about the application of legal precedent begin at the doctrinal (and sometimes practical) level. And in the countries of Anglo-Saxon law, the role of legislation is growing. Also, more and more national legal systems are gradually moving to the category of convergent (mixed) systems, sometimes revealing completely unexpected combinations of features (for example, the socialist and religious or traditional legal system). Moreover, even the systems of so-called post-Soviet law, which include the legal system of Ukraine, are nothing more than an expression of the convergence of the Romano-Germanic legal family and the family of socialist law.

Theoretical and Historical Reservations Required for Adequate Perception of the O. Holmes’ Legal Ideology

n Russian legal discourse there are frequent attempts to apply the postulates of a realistic legal understanding, formed by US Supreme Court Justice Oliver Wendell Holmes, to continental legal realities. The findings of the American lawyer in relation to the jurisprudence of the United States are transferring to the Russian legal institutions without regard neither to the difference the very essence of common law, which was studies by O. Holmes, nor to the difference of status and functions of the judiciary, of which he wrote, nor even difference of the historical process of formation of legal material which he explored. As a result, we have statements like the decisions of the Plenum of the Supreme Court or the decisions of the Constitutional Court of Russia are “judicial precedents”, and even the result of judicial law-making, as was described by O. Holmes and other legal realists. This article debunks the myths about the classification of the American legal understanding, about the real essence of judicial law-making in the United States and about its differences from its English predecessor, about the adequacy of the appeal to the American legal ideology without considering the cardinal features of the status and functioning of the US judicial system. The article offers a brief, but sufficient to overcome these errors, historical and theoretical essay on each of the identified areas.