Vol 6, No 3 (2019)

On there were the leading theorists of the law of the country. In article presented the author’s position about problems and perspectives of juridical thinking in post-classic perspective. Juridical thinking is it is a symbolic and informational activities according to the sphere of law, which acts as an internal, mental or mental content of legal practice, “accompanying” every legal action. Understanding (reflection) of juridical thinking is actual because of “cognitive revolution” in modern science. Most importantly moments, defining thinking of the postmodern era, characterizing all its levels and types, including legal thinking, are: uncertainty, contextuality, relativity, complementarity. Our knowledge about object is always incomplete, relative and contextual. Law is a complex, multifaceted, stochastic, potentially inexhaustible phenomenon that does not have a single referent to which the entire legal reality could be reduced (reduced). In extensive relations with all social phenomena (and not only social) there are more and more new properties of law. Numerous authorities today form many legal orders and at the same time types of juridical thinking. They set different images of law at the level of customary law and different criteria for assessing formal legislation. One of the differences of post-modern legal thinking (as well as thinking in any other sphere) is also its manipulativeness carried out by the authorities through media communications.

The article deals with the problem of understanding and knowledge of legal reality, from the point of view of understanding the trends of development of humanitarian knowledge in General and legal knowledge in particular. The limitations of classical approaches and the need for their methodological updating are pointed out. The connection of law with the socio-cultural context that determines its specificity is revealed. Social reality is a complex multidimensional and multilayered system consisting of many social institutions (constructs). All social institutions, including in the sphere of legal life, are intersubjective (both objective and subjective). The process of formation of legal knowledge is considered in the institutional and related areas of discourse analysis and theory of social representations. The article states that what a person constructs contains subjective and objective at the same time and in sociological phenomenology such combination is called as intersubjectivity. Intersubjectivity is considered in terms of human dimension. Human dimension acts as a filter between people and a conditional objective situation, which is accompanied by subjective experiences, such as expectations, needs, interests, etc. it is Noted that the objective and subjective exist in an indissoluble dialectical connection. It is argued that the knowledge of this reality is a complex process, which includes institutional acts of knowledge and understanding. Special importance in this process is given to objectification, internalization and legitimation. At the same time, it is legitimation that has cognitive and normative aspects, since it is connected with the value and cognitive (knowledge, understanding) subsystems of consciousness. The connection of the symbolic universe with the legal life is pointed out.

The article considers the phenomenon of legal thinking as an independent kind of thinking, whose main goal is the construction of legal reality. The author believes that legal thinking performs three most important functions: firstly, it forms the matter of legal reality formed by atomic facts, secondly, it establishes the interconnection of facts in the logical and cultural-historical space of reality and, thirdly, it consolidates facts and relations between them in various sign forms developed in the process of cognitive activity of individuals. As shown in the work, the establishment of a logical relationship between its static (constructive) characteristics and evolutionary dynamics is of particular importance in terms of theoretical understanding of legal reality. According to the author, it is the activity of legal thinking that creates the prerequisites for the evolution of law and legal reality in the historical dimension. Cognitive and other creative activity of legal thinking creates those symbolic forms in which the interrelation of facts and factual complexes takes on an external expression. Moreover, in the course of evolution there is a complication of such forms, their acquisition of universality and validity.

The work demonstrated that the most important regularity of legal evolution is the formation on the basis of specific situations of legal communication of subjective rights, which in the future, as they are typified and distributed to an increasingly wide range of individuals, are transformed into legal norms. This regularity gets its justification and confirmation both on general scientific material and on the example of legal science, which acts as the highest level of organization of legal thinking. The consequence of the processes under consideration, according to the author, is the formation of a common legal reality space for all individuals, which is a single field of intersubjective communications.

This article focuses on the history of the development of democracy from the time of the French Revolution to the present. The authors argue that the prevailing trend here is the transformation of the abovementioned political regime into, so to speak, a democratic dictatorship, which is a duumvirate of big capital and the upper stratum of the political establishment fused with it. It is this circumstance that gives the basis to some researchers, with whose position the authors are absolutely in solidarity, to declare the appearance of such a largely new socio-political and economic phenomenon as the corporation-state.

The need to study the possibilities of development of legal thought in copyright is caused by the fact that imposed on the legislator since the 90s, and more actively since the 2000s, the illusion that all relations of intellectual property in general are related to trade, is not true, and regulatory approval would lead to the destruction of significant and “truly human” traditional institutions of the Russian system of law such as copyright. No one can argue that it is one of a kind that allows a person to get acquainted with his inner content, and hence his potentials in the scale of participation in the social order. Drawing attention to the fact that intangible benefits — creative works of science, literature, art require appropriate legal protection, which, first of all, is based on respect for the personality of its author, the article refers to the fact that the material objective forms of expression of these results of human creative activity are carefully protected by national rules of law, which establish the need for gentle treatment, constant monitoring, updating, repair of cultural objects: paintings, sculptures, architectural monuments, etc. The article attempts to draw the legislator’s attention to the protection of creative results, which is built, at least, in two plans: at the level of protection of cultural values, carried out on the basis of generally recognized principles of international law, such as: the non-use of force and threat of force, respect for sovereignty, non-interference in internal affairs; and at the level of institutions that ensure the replenishment of the material and spiritual Fund of the Russian Federation, the main of which is copyright. And with this view of improving the norms of legislation, the state needs personnel who are rich in potential, able to actively act in their creative force aimed at creating and asserting the enduring (constant) values of humanity. The direction of improvement of legal norms on copyright is the purification of the normative body from pseudo-legal fictions that do not create consequences that favorably affect the development of creative potential of people. It is possible to think in this case when looking for ways to improve the legal technique of copyright law on the content of the concepts of “creative life” and “personality of the author”.

Based on analyses of well-known specialists’ writings, it is argued in the article, that scientific thinking, including doctrinal legal thinking, cannot but include mythological features, as such thinking goes not only within rational but also within ideal (imaginative) sphere. Remythologization of scientific knowledge becomes active due to move towards postclassic paradigm and researches’ need to achieve holistic vision of researchable objects and at the same time realize base structures supporting thinking process. Realizing of cognitive connection of rational elements and symbolism of myth illuminates occurrence of specific myth-logic in knowledge development which allows to guess truth by means of intuitive mechanisms which, as it was formerly believed, are not involved into scientific thinking. Difference between scientific and mythological thinking do not interfere such types of thinking to coexist in capacity of mutual complementarity, as human thought does not operate independently and imagery is unattainable apart from estimation. The sphere of modern consciousness, including legal, involves specific myth-logic, as such consciousness still contains archetypes of legal subjects, the real science is based on believe in a number of basic premises and ideas (paradigm) and reality is presented at a most abstract level which does not allow to use, in a nuanced way, an abstract-conceptual and logical-demonstrable knowledge. The adopted point of view is exemplified by human rights conception. It is resumed that mythological thinking is not only existing feature of thinking process but substantial resource of new knowledge. Therefore, the mythologic in science is not a fantasy but more like a guessed truth. Demythologization in legal science can be reached by explanation of all unclear and disputable points.

The purpose of this work is an attempt to outline some issues of possible interaction of theology and jurisprudence in the knowledge of modern legal phenomena. Interaction with Christian theology enables jurisprudence to fill its theoretical models and practical methods by referring to the Christian vision of man and interpersonal relations. The worldview revolution produced by Christianity consists largely in the assertion of the absolute importance and absolute value of the individual. At the same time, personality (a person as a subject of law, which is the bearer of subjective legal rights and obligations) is one of the key concepts in legal science and legislation. In the works on Christian anthropology special attention is paid to the understanding of human creative activity. The term “spirituality” used by the Russian legislation is closely connected with the theme of creative activity of the person.

At the same time, the “spiritual sphere” is the main focus of theological research. Theological studies of the question of “conscience”, a single moral law, can enrich the modern philosophy of law in solving the problem of the relationship between morality and law. The doctrine of the origin of evil (ponerology) developed in Christian theology may be of some interest in the development of criminological theories explaining the causes and origin of crime. The issues of interaction between theology and jurisprudence discussed in this paper cannot claim to be the final solution. Each of these problems can itself be the subject of independent research.

The article deals with the main provisions of Richard Posner’s book “How judges think”, which is, according to the author’s own assessment, an attempt by an American scientist to understand the motives that guide judges in making judgments. The emphasis Posner puts on psychology leads to the fact that the book gives the right to talk about how judges think, not about judicial behavior: considering traits, temperament, race and gender, as well as personal and professional experience. From all the above Richard Posner concludes that judges are guided by the rationality of actions and decisions. Therefore, special attention in this article is paid to the concept of rationality from the point of view of Posner himself, as well as the assessment of this concept from the point of view of Russian scientists V.L. Tambovtsev and L.V. Smorgunov, since this concept of rational choice reveals the essence of economic analysis of law. Special attention should be paid to the argument that according to Richard Posner, rational choice does not have to be without error in the conditions of lack of information or the complexity of its collection and analysis. The arguments of Henry Beckett, as one of the founders of the economic analysis of law, on rationality in the Commission of an offense are given. Also, the article considers the facts that allow to state that at present the economic analysis of the law has gone far beyond the initial attention to Antimonopoly regulation, taxation, regulation of public utilities, corporate Finance and other usual areas of economic regulation, the range of issues that can be resolved through economic analysis of the law is much wider and more diverse. According to the results of races-judgements and the estimation of economic analysis of law and the category of rationality in the legal field.

The Article presents an analysis of the main provisions of the principle of non-use of force or the threat of force proclaimed in the UN Charter and amended by Helsinki Final Act. The UN Charter puts first the principle of non-use of force or the threat of force among the main principles of international law, which is a fundamental factor in ensuring peace and safety throughout the world. The only mechanism for making decisions on the use of military force as the final argument can only be the UN Charter. The problem of the use of force was and remains one of the most complex and debatable in international law. The article provides a comparative and legal analysis of sources of international law governing the use of force or the threat of force in international law and individual cases in the practice of international relations. Russia does everything possible to prevent the use of military force in violation of the Charter of the United Nations, destabilization of the situation in the world, and builds international relations on the principles of international law for ensuring the reliable and equal security of states.

The article reveals the place of the prosecutor’s office in the system of separation of powers of these states based on the analysis of the constitutions and legislation of the member states of the Commonwealth of Independent States. The purpose of the article is to determine the best ways to improve the legal status of the prosecutor’s office to increase the effectiveness of the Russian prosecutor’s office.

The objectives of the study are to identify the general and particular in the legal status of the prosecution bodies of the CIS member states, to identify the main trends in the development of the institute of prosecution in these countries.

The object of the research was social relations defining the place of the prosecutor’s office in the system of state power, and the subject was directly the norms of law governing the activities of the prosecution authorities and the practice of their application. The research methodology is general scientific methods of cognition (dialectical, analysis and synthesis, modeling, etc.). The article contains a comparative legal analysis of constitutions and laws on the prosecutor’s office of the CIS member states. The author comes to the conclusion that international associations of prosecutors have a significant influence on the process of forming the legal status of prosecution authorities in the world. It is concluded that in the CIS member states there was no uniform model of prosecution bodies and, accordingly, there was no uniform approach to determining the place of the institute of prosecution in the system of separation of powers.

On the basis of the study, a tendency has been revealed to increase the influence of the President on the institute of the prosecutor’s office in a number of CIS countries. The author, after analyzing the laws of the CIS countries and Russian law enforcement practice, comes to the conclusion that it is expedient to adopt legislative and organizational measures aimed at embedding the Russian prosecution authorities in the system of “presidential” authority.

The article deals with the essence of punishment and criminal impact in modern criminal law. Vectors of development of the institution of punishment in the era of formation of digital society are defined. The author considers in detail the current trends of transition from punishment to criminal law impact, justifies the reasons for such transformation and possible consequences.

The aim of the study is to identify the place of punishment and criminal measures in the structure of criminal law and the prospects for their further improvement, taking into account the shift of scientific paradigm and the formation of a new digital age. Objectives of the study: on the basis of identification signs of punishment and criminal law action, to show the causes of the crisis of the institution of punishment in criminal law and the existing contradictions in the resolution of criminal law conflicts.

The study used traditional methods of socio-legal and formal-dogmatic analysis: documentary, historical, legal, analytical, systemic and logical.

According to the results of the study, it is proposed to revise the teaching of punishment from cultural and spiritual and moral aspects. Punishment continues today to be the only reasonable way to influence crime, despite the fact that globalization brings to the fore the reformatting of the principles of criminal law and the departure from the principle of equality of all before the law towards differentiation of the perpetrators of the wrongful act, taking into account their social status. Without a fundamental change in the existing approaches to the concept of crime and criminal responsibility, a shift in emphasis from punishment to criminal law impact would not be meaningful. Punishment is directly proportional to the culture of society in a particular historical period and to the spiritual, economic and political values that prevail in society. Therefore, the concept of punishment cannot be changed automatically, in isolation from socio-economic transformations and cultural attitudes of society.

The author of the research-based conclusion about the prospects of development of complicity in a crime and its enforcement in modern conditions. With a view to the unification of the Institute of complicity and group crime it is proposed to replace the qualifying trait of offences “group of persons” and “a group of persons by prior conspiracy” for classifying sign of committing crimes “in complicity on involving persons who are not capable of criminal responsibility», exclude classifying sign of committing crime “organized group” with the criminalization of the creation, management and participation in an organized group. Based on the experience of international law, as well as criminal legislation of foreign countries, expedience implementation in Russian criminal legislation of quantitative criteria of differentiation of organized groups and irregular. Places particular emphasis on intensive development of information and telecommunication technologies, which makes the remoteness and hence the remoteness and anonymity of the involvement of accomplices in criminal activities, including terrorist, extremist, in drug crime.

The article discusses some issues of the use digital technology in the implementation of prosecutorial supervision over the implementation of laws in the reception, registration and resolution of reports of crimes in the bodies of preliminary investigation. Active use of digital technologies in this area of supervisory activities is extremely relevant and practical justified as a necessary condition for prompt receipt, objective assessment of information on the legality and validity of actions and decisions of subjects receiving, registering and resolving crime reports, and the event of their wrongfulness — taking appropriate situations, organizational and practical measures of the prosecutors response.

According to the author, it is necessary to expand the range of information processed using the appropriate software product. It is proposed to organize the acquisition of data on the results of the investigation of a crime, criminal case about which, as a result of the identification by prosecutors of criminal violations of federal laws, human and civil rights and freedoms, as well as on the results of the work on the search for the missing.

In connection whit the regulatory gaps in the use of digital technologies in law enforcement, in is proposed to issue a federal law «On Single Record of Crimes», including defining the responsibility of the heads of preliminary investigation bodies to immediately inform prosecutors about the allegations and reports about crimes received.

This article is devoted to the study of the problems of interaction of law enforcement agencies in the field of countering modern security threats. In this connection, it justifies the need to create a mechanism for the joint operation of security and security elements of the law enforcement system through the prism of the main trends of law enforcement policy, allowing to draw conclusions about how the features of this process affect the quality of law enforcement. At the same time, the influence of the features of the law enforcement mechanism is connected with the minimization of its costs on the effectiveness of the activities of security agencies at the expense of provisional funds.

It is noted that the current stage of development of society is characterized by the transformation of many legal relations, including and law enforcement. However, the use of information technologies by terrorists causes, perhaps, most of all the issues for the resolution of which the forms of interaction of law enforcement agencies that ensure the integration of their activities are proposed.

By the example of the problem of countering telephone terrorism with the use of modern technical achievements, the importance of the integrated interaction of law enforcement units, which the author regards as a tool to increase the effectiveness of law enforcement, is shown. It was noted that objectively existing needs for the integration of the actions of states in the suppression, prevention and punishment of such crimes, lead to the intensification of international cooperation in the designated area.

Special attention is paid to the Kaliningrad region because of its autonomy and vulnerability due to its remoteness from the main territory of the country and its environment to states that pose a potential threat to the security of the Russian Federation. The author formulates conclusions on the results of the study.

The article analyzes the norms of the criminal procedure law, the opinions of scientists, judicial practice materials related to the examination of evidence in criminal proceedings in the court of first instance, on the basis of which the author proposed definitions of the notions subject of examination evidence and limits of examination evidence they were compared with the concepts of subject of proof and limits of proof. The study used such research methods as logical, system-structural, statistical. As a result of a study of specific court decisions in criminal cases, differences in the understanding of evidence and the examination of evidence were revealed. A distinction has been made between the subject and the object of the study of evidence at the court hearing. The question of determining the subject matter and the limits of the examination of evidence was analyzed, including with regard to the consideration of the criminal case in a special order of judicial decision of the court, with the consent of the accused with the accusation. The rationale for the view that the examination of evidence takes place during the examination of a criminal case under a special court procedure is given, the circumstances that can be established during the court session, namely, the circumstances that may lead to exemption from punishment, as well as the postponement are analyzed. serving the sentence. These circumstances, if any, are mandatory to be established in court proceedings through the examination of evidence. According to the results of the analysis, proposed measures to improve the norms of the criminal procedure law governing the consideration of the criminal case in a special order of the trial. The question of the scope of the examination of evidence was considered in conjunction with the norms of the criminal procedure law, which established the grounds for the return of the criminal case to the prosecutor.

Analysis of the most interesting reports of participants is presented in the review of the first All-Russian conference “Current Problems and Prospects of Development of School of Sciences of Chrono-Discrete Mono-Geography Comparative Jurisprudence” which took place in Nizhny Novgorod Institute of Management Russian Presidential Academy of National Economy and Public Administration on October 30, 2018. On the basis of the methodological principles of school of sciences of CMCJ the cross-disciplinary and interindustry dialogue which allowed to reveal the general regularities of different development of institutes, the ideas, concepts, the phenomena and processes, being object of studying of various researchers was built. The purpose of a conference consisted in judgment of specifics the chrono-discrete of institutes, the ideas, concepts, the phenomena and processes from positions of various branch approaches within uniform methodology of school of sciences of CMCJ and establishment of cross-disciplinary communications. Reports of participants created problem and thematic blocks, to the devoted problems of the theory and methodology of CMCJ-researches, judicial and state and legal institutes through a prism of the methodological principles of school of sciences, to institutes of civil society and other public institutes in the context of CMCJ-methodology, to private-law concepts and institutes as to objects of studying of school of sciences of CMCJ. The discussion developed during the conference affected various aspects of the temporary gap dividing linear development of institutes, concepts and other objects of studying of school of sciences, feature of reproduction of the corresponding objects in modern conditions. Following the results of a scientific action the decision on holding the Second All-Russian scientific conference “Current Problems and Prospects of Development of School of Sciences of Chrono-Discrete Mono-Geography Comparative Jurisprudence” in October, 2019 was made, and materials of the First conference were published in the separate collection of scientific works.

In this review the author analyzes the monograph of Professor William T. Pizzi «Trials Without Truth: Why Our System of Criminal Trials Has Become an Expensive Failure and What We Need to Do to Rebuild It» translated by Denis Andreevich Pechegin. The author draws attention to the importance of this book for the development of comparative legal science.