The Rule-Making: From Juridical Technique to Legal Architecture and Engineering

So far, the science of penal law has not looked closely into the term “doctrine”, and, in particular, “penal and legal doctrine” from the theoretical point of view. Thus we find it necessary to eliminate this gap, since the use of these terms and their synonyms varies greatly in the scientific and educational activities of penal institutions. Understanding the doctrinal grounds is also important for assessing the current situation and prospects for development of the science of penal law. The article analyzes the usage of the terms “penal and legal doctrine”, “criminal-executive doctrine” “doctrine of criminal-executive law”, “penal doctrine”, “correctional doctrine”; penal and legal doctrine is considered as part of legal doctrine; we study the notion of “legal doctrine” in its relations with adjacent categories (science, concept, position); we also investigate the effects of penal and legal doctrine on the penal and legal policy. We conclude that the term “penal and legal doctrine” is the core one and acts as a necessary prerequisite for scientific analysis. We also provide recommendations for the use of the term “doctrine” in the penal law sphere and put forward our own definition of the term “penal and legal doctrine”. In the course of our research we used general scientific, sectoral (social narrative) and level methodology (methods of theoretical and metatheoretical levels of cognition in science). Key words: penal and legal doctrine, legal doctrine, criminal-executive doctrine, correctional doctrine, doctrine of the criminal-executive law, penal and legal policy, metalanguage tool.

The endeavour to take jurisprudence seriously is addressed by Baghai, a sociologist, to those within her own discipline who fail to engage with the internal understandings of law, most particularly those exhibited within the discourse that accompanies appeal court decisions, namely the discourse that helps to establish and develop legal doctrine. In effect, the book is an appeal for sociologists to assign greater attention to legal doctrine as an object of study. But such an appeal can also be interpreted as a request for theorists who study legal doctrine to take sociology seriously – namely an invitation to legal theorists to bring sociology, or at least one version of it, to bear on their study of the evolution of doctrine. This proposal faces considerable resistance from those on both sides of this divide. Whilst Hart notoriously described The Concept of Law as an essay in both analytical jurisprudence and descriptive sociology, the analytic tradition that he sponsored has sought to augment its academic credentials by moving ever closer to philosophy rather than sociology. With the important exception of Brian Leiter's arguments for ‘naturalising jurisprudence’, the general drift of analytical jurisprudence has been towards a prioritising of philosophical methods over empirical insights. And the resistance to some rapprochement has not been limited to the philosophical side of the divide. The sociology of law has a long tradition of approaching the study of law in a manner that distances itself from the self-understandings of participants in the legal system (lawyers and especially judges). This transfers in turn into hostility towards the manner in which legal philosophy has engaged with those self-understandings, with its willingness to consider, at high levels of abstraction, whether law consists of rules, norms or principles. Rather than organising insiders' views into conceptual schemes, and then examining them for their coherence and consistency, legal sociology has generated its own facts and truths about laws and lawyers, principally using empirical methods (but also other methods) and contrasting these ‘truths’ with lawyer's self-understandings, treating the latter as an inferior form of knowledge either disconnected from reality or ideological rather than descriptive. It has also noticeably failed to engage with much of the central concern of legal philosophy – the attempt to identify law as a separate entity within society. Rather than considering the existence of law as a unity, it focuses instead on parts of law as examples of more general sociological categories, such as studying the legal profession within the sociology of professions or courts, legislatures and administrative agencies within the sociology of institutions or organisations.

The historiography of political and legal doctrines as the main subject of research tries to answer the question: how were state and legal institutions studied in fact from the moment of their inception. In this sense, the history of political and legal doctrines is the history of the theory of state and law, since it reflects various forms of theoretical knowledge. This article is devoted to genre forms (sources) in which thinkers of different historical eras expressed their attitude to law, state, power and other phenomena and institutions close to them. The word “genre” is used deliberately due to the fact that political and legal categories were often written in a free style, which makes various sources related to literary works. Genres (sources) reflect the evolution of political and legal doctrines — from religious texts and myths of antiquity to dissertation and monographic studies of the modern period of development of legal science.

Introduction. The article is devoted to the general theoretic analysis of legal category “privilege”. The author proposes and argues the hypothesis of the perception of privilege as a form of legal advantage different from such types of this system as courtesy and immunity. The work presents essential and substantial consideration of legal privilege from the point of view of the doctrine of law, historical and modern legislation, as well as law enforcement practice. The aim is to form a view of privilege as a form of improving the legal situation of individual entities with special legal status; to propose its definition. Methodology. Historical learning style, empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Specific scientific methods: technical approach, method of interpretation of legal norms. Results. Analysis of doctrinal sources of Russian and foreign law, historical monuments of jurisprudence, modern normative legal acts and law enforcement practice has shown thatthe category of privilege is often mixed with other legal means, having an incentive or rewarding character. On the basis of the establishment of similarity and distinction elements between privilege, courtesy and immunity, aspects of their interaction and existing contradictions, the author proves the independent categorical nature of privilege, identifies its specific features, which differ from related legal phenomena. Conclusion. In both legal science (theoretical and sectoral) and the system of legislation, it is necessary to clearly distinguish the understanding and application of the legal category “privilege” by means of: establishing legal definition, unification and specifying the provisions of normative acts using backing, incentive and rewarding instrumentarium; achieving the justifiable use of evaluation categories giving the right to the privilege. The actions taken should contribute not only to improving the efficiency of public relations regulation due to the legal advantages system, but also to reducing the corruption risks associated with the granting of such “on top of ” rights, diminishing administrative barriers on receipt and realization.

LAW IN DIGITAL REALITY

In addition to ijtihād (independent legal reasoning), tarjīḥ (weighing up and preference) serves as a fundamental instrument of traditional Islamic law's operational work and was used on different levels. In modern times, tarjīḥ is still applied not only by individual scholars but also by collective fiqh institutions. However, the conception of tarjīḥ is undergoing a transformation in its current application. In the scope of this article, the first purpose is to provide a comprehensive overview of the conception and the diverse practical forms of the tarjīḥ in traditional Islamic law. The focus then lies on setting out how to apply tarjīḥ in modern Islamic jurisprudence. This article also aims to illustrate the conceptual and operational changes of tarjīḥ, paying special attention to the relation between tarjīḥ and ijtihād. Overall, this article intends, on the one hand, to contribute to the study of present Islamic law's developments; on the other hand, it examines the continuity and change of tarjīḥ from traditional Islamic law to contemporary fiqh institutions. It is argued that tarjīḥ in the modern age is not only used as a method of weighing and choosing a legal view that among the diverse views of pre-modern law most closely adapts to the current social circumstances, but that it is also integrated in the process of development of new legal doctrines.

This study is aimed to study a key element of the activity of any international organization — the problem of consensus decision-making and the corresponding practice of solving it both in integration bodies (Eurasian Economic Union, European Union) and in interstate organizations devoid of a supranational component (Shanghai Cooperation Organization, North Atlantic Treaty Organization treaty, Collective Security Treaty Organization).Aim. Identify current approaches to improving the application of the rule of consensus in interstate (intergovernmental) structures and their bodies.Tasks. Investigate and generalize the practice of consensus decision-making within the international regional organizations, highlight actual ways to increase the efficiency of their decision-making mechanisms.Methods. The study used general scientific methodology. The comparative analysis method is used to compare existing decision-making practices. Analysis, synthesis, generalization, as well as the formal logical method were used to formulate the conclusions of the work.Results. The collective decision-making based on consensus follows from the international legal principle par in parem non habet imperium. It emphasizes the equality of all participants in an international organization and excludes the imposition of obligations non-approved by a sovereign state. From this point of view, consensus is a way to strengthen unity and achieve organizational stability. Simultaneously the practice of using this form in various international organizations gives evidence to its low efficiency in decision-making. Achieving consensus requires intensive efforts to coordinate the positions of the parties, and the emergence of “one-vote veto” situations cannot be ruled out. A possible way to increase the efficiency of decision-making within the framework of integration processes (EU, EAEU) lies through the development of supranational mechanisms.Conclusions. Analysis of the practice of functioning of international regional organizations (SCO, NATO, CSTO) allows to identify two approaches aimed at overcoming the negative features of consensus decision-making. The first involves the development of an international organization with formal obligations of members into a community associated with the establishment of a set of shared values among its participants. The second presumes the creation of mechanisms that allow interested states to use the institutions of such a structure to make collective decisions without a not-participating state. Both approaches do not exclude but complement each other.

The paper analyzes the provisions of the domestic legislative base and legal doctrine on the discussion issues of substantive and essential parameters of the category of environmental safety of the state. The opinions of domestic and foreign authors are studied, an extensive layer of theoretical and applied problems in the field of normative-legal support of the activity of state-public entities to ensure environmental safety, as well as ways to neutralize them in the foreseeable future are presented. Accumulation of the accumulated theoretical and empirical material, combined with the use of modern methods of cybernetic research made it possible for the author of the publication to present a set of measures to modernize the normative-legal parameters of state policy in the field of environmental protection. The theoretical and practical significance of the obtained results is multifaceted, as the substantiated conclusions can be a foundation for further doctrinal developments on auxiliary issues of ensuring environmental safety of the state, as well as in the development of educational and methodological material for disciplines of public-law cycle.

Is Formalism inevitable? Katrina Miriam Wyman (bio) I Introduction Through his new book The Law and Ethics of Restitution (hereafter LER), Hanoch Dagan hopes to help revive American interest in a subject that now receives considerably more scholarly attention in England and the Commonwealth than in the United States (328-9). To do this, he proposes a distinct approach to the study of the law of restitution. Contemporary scholarship about restitution is often formalistic: it tends to examine restitution independently of the social context in which the law exists, and to assume that it is internally intelligible.1 Against this backdrop, Dagan promises what he describes as a legal realist perspective on restitution. As he informs us early on, The Law and Ethics of Restitution will 'largely follow[] [in] the footsteps of mainstream legal realism, represented by the work of Karl Llewellyn and Felix Cohen' (3-4). Instead of approaching restitution law as an autonomous realm, the book will examine the law instrumentally, as an explicit embodiment of three 'policies and values' (4). Moreover, it will do so by considering the law in its social context, just as legal realists advocated.2 Dagan deserves high praise for the intellectually challenging analysis of the law of restitution that follows in the next 300+ pages. Consistent with Dagan's ambitions, LER takes several important steps towards reorienting restitution scholarship. However, it is nonetheless [End Page 685] not an entirely successful attempt to examine restitution through a legal realist lens. Most notably, Dagan's analysis of restitution remains largely internal, focusing on the legal rules that make up the doctrine and offering surprisingly little insight into the context in which the law operates. There may be several reasons for this. The ambitious objectives that Dagan sets for himself - 'of understanding, criticizing, and improving the law of restitution' (4) - may lead him towards a largely autonomous study of the law. After all, the breadth of these objectives presupposes that the law of restitution is worth examining on its own, apart from the social context in which it operates. Moreover, on a practical level, the varied circumstances in which restitutionary claims arise may be too diverse for even a committed legal realist to grasp, let alone discuss comprehensively in a single volume. Regardless of why LER analyses restitution mostly acontextually, it is noteworthy that the book does so notwithstanding Dagan's conscious effort to offer a legal realist perspective. Notably, Dagan is not the first legal realist to be committed to studying law in its social context and to analyse a particular branch of the law with limited understanding of that context. Indeed, he is in excellent company. Karl Llewellyn, one of the most prominent original legal realists and an inspiration to Dagan (3-4), also approached his area of expertise (contract law) with little systematic insight into the context in which it operates.3 The inability of both Dagan and Llewellyn to move beyond largely autonomous considerations of legal doctrine in spite of their methodological commitments is suggestive. Specifically, it raises a fundamental question about whether the study of legal doctrine must be at least somewhat formalistic and, thus, self-contained. Dagan aspires in LER to prove the opposite, by demonstrating the benefits of analysing legal doctrine through a legal realist lens (3). However, the book unintentionally ends up providing evidence for the position he is attempting to disprove, by suggesting that any serious study of legal doctrine inevitably must examine law in at least some isolation from its social context. Part II of this review briefly situates LER within existing restitution scholarship, in order to underscore the boldness of Dagan's attempt to offer a legal realist perspective on the American law of restitution. Part III attempts to reconstruct his legal realistic interpretation of restitution. Part IV explains why LER remains formalistic in important respects. I conclude by considering the implications of Dagan's inability to exorcise completely the ghost of formalism for the possibility of engaging in legal realistic doctrinal analysis. [End Page 686] II The formalist backdrop For many decades, restitution has been regarded as the least steady leg on the four-legged stool of Anglo-American private law. While contract...

This article examines the post‐Cold War tendency to broaden the counter‐terrorism mandate to include other phenomena such as organised crime, drug‐trafficking and illegal immigration. This redefinition has important implications for democracy, both at the level of discourse and at the level of practice. At the level of discourse, the plasticity of the word “terrorism” and its application to a wide variety of phenomena is a form of claims making activity by a variety of agencies fighting for budgetary allocations in an era of cost‐cutting and deficit reduction. At the level of practice, the counter‐terrorism mandate is being expanded to include the range of phenomena covered in the widening discourse and this, in turn, has led to a blurring of boundaries between internal and external security, police and military models of control, and public and private sectors. All this has an impact on the openness of government, the accountability of agencies of social control, the adherence to the rule of law in the fight against terrorism and related phenomena, and the possibility of informed consent by a public made fearful by the claims‐making discourse as it is disseminated through the mass media.

Introduction: choosing healthy foods is vital for every person. The means of legal regulation can be used to ensure healthy choices. The purpose of the study is to identify the main means of “smart regulation”, acceptable and effective in the field of relations with the participation of consumers. The paper uses the methods of description and interpretation; the theoretical methods of formal and dialectical logic. Results: taking into account the achievements of behavioral economics, it is necessary to recognize that a person is prone to irrational behavior, misjudging information, and possible risks. “Smart regulation” involves achieving the desired result in the simplest possible way, including the so-called “nudge”, which makes it easier to choose the desired behavior. Nudge tools in government regulation can be used to make choices in favor of healthy foods. The consumer protection legislation uses the methods to determine the architecture of consumer choice in favor of healthy, high-quality, safe food. The state can establish rules that require manufacturers to indicate a certain set of information on the product, and sellers – to lay out the products in such a way that the consumer’s attention is focused on healthy products. Conclusions: in relationships involving consumers, it is necessary to use “smart regulation” means to influence the choice of healthy foods. The basis for the use of such means is to bring to the attention of consumers proper and reliable information about the principles of a healthy diet, as well as about the product, its ingredients, and features. Such information can be placed in the form of product labels, which should be clear and understandable.

This article addresses the range of measures that has been developed by Russian Government in order to attract investments in the economy. The analyses of effectiveness of investment protection and promotion agreements, special investment contracts, state program “Project finance factory”, various tax benefits and preferences for participants in investment activities is presented.This study mainly uses such methods of research as analysis, synthesis, comparison, deduction, induction, methods of formal and dialectical logic, method of analogy, methods of expert assessments.The results show that certain improvements to the implemented support measures should be made for better stimulation of investments.

Introduction: the article deals with the issues concerning the protection of the rights to digital content created with the use of artificial intelligence technology and neural networks. This topic is becoming increasingly important with the development of the technologies and the expansion of their application in various areas of life. The problems of protecting the rights and legitimate interests of developers have come to the fore in intellectual property law. With the help of intelligent systems, there can be created not only legally protectable content but also other data, relations about which are also subject to protection. In this regard, of particular importance are the issues concerning the standardization of requirements for procedures and means of storing big data used in the development, testing and operation of artificial intelligence systems, as well as the use of blockchain technology. Purpose: based on an analysis of Russian and foreign scientific sources, to form an idea of the areas of legal regulation and the prospects for the application of artificial intelligence technology from a legal perspective. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic; special scientific methods (legal-dogmatic and the method of interpretation of legal norms). Results: analysis of the practice of using artificial intelligence systems has shown that today intelligent algorithms include a variety of technologies that are based on or related to intelligent systems, but not always fall under the concept of classical artificial intelligence. Strictly speaking, classic artificial intelligence is only one of the intelligent system technologies. The results created by autonomous artificial intelligence have features of works. At the same time, there are some issues of a public law nature that require resolution: obtaining consent to data processing from the subjects of this data, determining the legal personality of these persons, establishing legal liability in connection with the unfair use of data obtained for decision-making. Standardization in the sphere and application of blockchain technology could help in resolving these issues. Conclusions: in connection with the identified and constantly changing composition of high technologies that fall under the definition of artificial intelligence, there arise various issues, which can be divided into some groups. A number of issues of legal regulation in this area have already been resolved and are no longer of relevance for advanced legal science (legal personality of artificial intelligence technology); some issues can be resolved using existing legal mechanisms (analysis of personal data and other information in course of applying computational intelligence technology for decision-making); some other issues require new approaches from legal science (development of a sui generis legal regime for the results of artificial intelligence technology, provided that the original result is obtained).

Importance. The article considers a modern method of increasing the competitiveness of an organization based on self-assessment of its activities. The methodology of self-assessment is based on generally recognized models of business excellence, in our country it is the model of the Russian Government award in the field of quality, which corresponds to the European Model of Business Excellence of the European Foundation for Quality Management (EFQM). The model evaluates how the organization, using its capabilities, achieves the planned results. Objectives. Analysis of the organization’s self-assessment tools in identifying strengths and weaknesses in activities, as well as aligning the organization’s capabilities with its mission and goals. Methods. In the process of achieving the set goals, a set of scientific approaches was used: systemic, project-based, institutional, and structural. The work uses the techniques and methods of formal and dialectical logic. Results. The main approaches to the management of competitiveness based on innovative, marketing, quality and financial indicators are shown. The criteria of the Russian government award in the field of quality are compared with the classical theories of competitiveness and the Japanese approach to the competitiveness of the organization. The advantage of the methodology of self-assessment according to the criteria of the Russian government award in the field of quality in the assessment of soft performance indicators, such as leadership, staff satisfaction, customer satisfaction, is shown.

The authors of the article start from the idea that anime is a special product of the mass media space, which can have a strong and often destructive effect on the psyche of adolescents, becoming a potential or real factor in suicidal behavior in adolescents. In such cases, anime is subject to legal qualification, for the purpose of which various expert studies are carried out – more often psychological, less often linguistic. However, according to the authors of the article, linguistic-cultural examination is called upon to become the optimal tool for an objective study of anime. Within the framework of such a comprehensive study, it is possible not only to establish what exactly is said about the subject of speech, about the attitude towards it, about the purposes of communicating information to the addressee and why something is actually said, but also to explore anime plots from the point of view of social significance, as well as ideological and ideological aspects. Purpose: reveal the possibilities of linguistic-cultural examination for an objective study of anime products. Methods: empirical methods of description, interpretation; theoretical methods of formal and dialectical logic. Results: 1) an idea of linguistic-cultural examination and its methods is proposed for scientific discussion; 2) the need for linguistic-cultural examination in identifying the destructive mechanisms of influence of anime products is emphasized and illustrated.