Vol 6, No 2 (2019)

The article analyzes the prospects and state of the philosophy of law and philosophy of the branches of law. This topic was discussed for the first time in the history of modern legal science after in 2017 the editorial staff of the Russian Journal of Legal Research put it out for wide discussion by publishing a number of articles on the subject in the journal (No. 1, 2017). The proposal to pay attention to this topic received the response of leading scientists from different regions of the country and neighboring countries. As a result of an active and interested attitude of specialists, a thorough and collective discussion of the problems, a kind of intersectoral and “brainstorming,” was obtained. Only on the journal’s website (russianjls.ru) over 18 thousand downloads of articles by the authors of this issue were made. The editors received a significant number of reviews, and the publication itself was highly appreciated among practicing and theorizing lawyers.

Updating the philosophical understanding of the branches of law is not a tribute to fashion. It is due to a long overdue need.

The article seeks to substantiate the philosophical and legal approach to the law. The article deals with the problems of jurisprudence from the standpoint of the philosophy of law. The author considers historical-methods aspects of development of philosophy of law as the most important moment of formation of the European liberalism conditioned by the genesis thereof.

The aim of the article is to describe the influence of the philosophy of law on the formation and development of a legal worldview.

In the present article author researches questions of philosophy of law impact on the law. Among the philosophical and jurisprudential schools and disciplines, which significantly affected the establishment and transformation of legal philosophy the decisive role belonged to the entire philosophical system of Georg Wilhelm Friedrich Hegel, including philosophy of law, history, religion, and logic. The question of what was the impact of philosophical system of Georg Wilhelm Friedrich Hegel for the formation of teaching on law is considered in the article.

That is why, “Philosophy of Law” by Georg Wilhelm Friedrich Hegel is of high value in the history of political and legal though, and Georg Wilhelm Friedrich Hegel should take a worthy place among the patriarchs of the philosophy of law.

These problems identified the subject of the study conducted in the article. The identification of certain features of succession with regard to Hegelian philosophy allowed us to indicate ways of enriching jurisprudence with the philosophy of law.

The methodological basis of the research is a set of methods of scientific knowledge, among which the main place is occupied by the methods of historicism, comparative-legal, as well as formal-legal and systemic approach.

Its provisions can be used in further studies on issues of philosophy of law and jurisprudence.

The article analyzes the philosophical problems of legal Slavistics associated with the formation of the updated pan-Slavic state-legal ideology aimed at the development and improvement of Confederate and Federal forms of Slavic Association. The author consistently investigates conceptual, civilizational and geopolitical obstacles of the Slavic unity connected with religious, military-political and nationalist dissociation of the Slavic peoples. At the same time, the presented work suggests ways to overcome the anti-Slavic political and legal dogmas, with the help of education aimed at the formation among the Slavs of the pan-Slavic doctrine of the primacy of the Slavic communal-tribal system, built on the basis of archaic socialism (mutual responsibility and mutual assistance); Veche rule; freedom, denial of all forms of slavery; linguistic kinship; organic unity of personal and community interests, with the recognition of the unconditional primacy of sovereign values over private; as well as the supremacy of spiritual and moral principles over material needs. In practical terms, a legal project is proposed for the development of the Union State of the Republic of Belarus and the Russian Federation, which in the form of government can be a collegial Republic, in the form of state-territorial structure — a Confederation with a tendency to federalization and a democratic-polyarchic state regime. In addition, the author believes that from a civilizational point of view, Poland, the Czech Republic and Slovakia are predisposed to unite in the West Slavic Confederation-the Great Vagria or Venea; Russia, Ukraine and Belarus, having common historical, state and religious — Orthodox roots are obliged within the framework of reunification to create the East Slavic Confederation-Svetlorossia; in the Balkans, led by Serbia, it is necessary to revive the Federal Republic of Yugoslavia with the inclusion of the Republic of Serbia, the Republic of Montenegro, the Republic of Northern Macedonia, the Republic of Bulgaria, the Republic of Serbia Krajina. Slovenia and Croatia should be merged into the Croatian-Slovenian Federation. In the future, Slavic confederal unions and the Federation, together with the Slavic communities beyond the national borders of the Slavic Nations (for example, Sorbs in Germany) for the preservation of their identity and the free development have the potential to unite in a pan-Slavic Union state — the Great Vseslav. It is advisable to elect a collegial Republic as a form of government of the great all-Russia; a form of state-territorial unity of the Confederate-Federal Union of Slavic peoples, communities and States with a socially guaranteed regime of political democracy.

The article, which consists of two parts, explores the problems of the political and legal foundations of goal-setting and the effectiveness of public administration in modern Ukraine, assesses the significance of the constructiveness of the implementation outlined in the context of public interest and state growth strategy. An attempt was also made to prove that the existence of scientifically substantiated goals, their systematic nature, strategic and functional validity are the basic features of a state of law and an indispensable condition for the high quality of public administration. It is also taken into account that the concepts of “effective” and “efficiency” are perceived ambiguously in science and everyday management practice. For some, it is effective that it is desirable and expedient, for others, only that allows them to realize their intentions and satisfy their respective needs, for others, it ensures that the desired result is obtained at the lowest cost. It also touches on the difficulties of making effective managerial decisions in the difficult conditions of modern reality, in a situation where there are no strict methodological guidelines and the corresponding legal, organizational, procedural and heuristic algorithms, not populous moral principles dominate, but populist blur. The presence in such conditions of only normatively approved criteria and performance indicators is clearly not enough. The substantive content of the concepts “goal”, “goal setting”, “efficiency”, “social effect”, and “extremist right-wing groups” was also clarified.

The causes of failures, failures and negative consequences of the current public administration system in the political and legal space of modern Ukraine are investigated. Hence the task of forming a modern legal, professional, and moral culture of the administrative apparatus and skills, not to bureaucratically bind, hinder, and destroy, but to stimulate, create, and multiply. It is proved that the tasks of modernization and social renewal can be effectively realized only by a highly professional, stable, well-structured, nationally oriented state apparatus, highly efficient, well-organized and respected public service.

Materials and methods. The theoretical and methodological basis of the study was the dialectical materialistic approach to the analysis of social phenomena and mechanisms of government, both horizontally (genetic aspects — the essence, patterns, goals, functions, principles, specific historical manifestations, taking into account geopolitical and national-country specifics) and vertically (ideals, interests, forms and methods of legal regulation and strategic control). A wide range of methods of scientific knowledge was used: comparative legal, formal logical, concrete historical, system-functional.

The main conclusion. The task of creating an effective public administration system for modern Ukraine remains one of the most urgent tasks; managerial goals and measures for their effective implementation should be politically, legally and economically justified, reflect the deep interest of society with a deep understanding that if a country does not have a strategic goal and there are no higher meanings, then life turns into a meaningless existence, the state finds itself in a situation of turbulence disintegration and dispersion. Therefore, the plan should be implemented systematically and consistently, in strict accordance with the law and in a healthy moral and political space. The key to success is social trust, strong political leadership, responsibility and constructive action.

In article the questions of globalization of criminal law and the pursued criminal policy are raised. At the doctrinal level trends of implementation of norms of the international criminal law and a problem of general unification of norms of criminal law are analyzed. The author comes to a conclusion about discrepancy of the mechanism of a global instrumentalization of criminal law and artificial imposing of the international standards to the national states. In article global initiatives of general and unconditional implementation of rules of international law and other legal institutes are in detail described. It is specified that these trends cannot be born in itself, without external intervention. It is proved that the drawn line of artificial unification of criminal tools at the global level leads to institutional crisis since basic borders of criminal law cannot identically be considered in relation to each single country (a national criminal system) in view of various social and economic parameters of functioning of the states and means of their realization.

Studying the legal foundations of the functioning of the Constitutional Court of the Russian Federation and the essence of its final acts, the author reveals the main conflicts that the practice of constitutional justice has objectified, directly or indirectly leveling out the very idea of creating and socially-normative appointment of this body in the state and society.

Disputes have lasted for more than a decade on the nature of the reason for initiating a criminal case, dozens of definitions are given to this term, but a common understanding has not yet been reached. The article attempts to analyze the concept of “reason for initiating a criminal case” in a linguistic and philosophical aspect. The conclusion is made about the expediency of considering the notion “reason for initiating a criminal case” not as a separate linguistic unit with independent lexical meaning, but as a phrase consisting of the concepts “reason” and “initiating a criminal case”. From the standpoint of the dialectical approach, the reason is considered as a condition manifested as a phenomenon of objective reality. Recognizing the infinity of the content of the occasion as a phenomenon of objective reality, the most significant of its elements are highlighted.

The article is a continuation of the author’s publications about integrative conception of the meaning of law in the Russian Journal of Legal Research No. 2 for 2016 and No. 1 for 2017. The author understands under the semantic conception of law an a integrative holistic and collective image of law, which always has a specific historical content (in this modern society) and operates in accordance with the principle of complementarity of different types of legal understanding. This conception contains several basic assumptions. First, the semantic conception is not an absolutely new type of legal understanding, and the meaning of law is one of the supporting connecting structures that, from the point of view of modern philosophy and methodology of science, characterize the interpretational style of scientific thinking. Secondly, the dispute between the philosophy of law and the theory of law for the priority in legal understanding can be solved by a scientific convention based on the concept of the meaning of law, which harmoniously combines the internal nature of law and its external relations with economics, politics, culture and other subsystems of society. Thus, the opposition between the law “from the inside” and that which is “outside” the law is removed. Thirdly, the semantic conception of law is able to set the optimal vector for improving the conceptual apparatus of jurisprudence and for modernizing the criteria of the scientific novelty of modern legal knowledge from the position of the so-called “classical” and “postclassical” legal paradigms. If the meaning of the law is improved by the internal logic of the development of the law itself, then the scientific novelty will always be postulated as “understanding traditional ideas at a new stage”. But if the meaning of law derives its sources from the social space, then, of course, it is necessary to recognize that philosophical concepts, terms and institutions can be included in the conceptual apparatus of law within the framework of a new objective interpretation. The semantic conception of law has significant theoretical and practical potential for system analysis of the problem of modern Russian legal understanding.

The examination of political reactions content in historical terms has shown that their substance does not remain unchanged. Originally democracy means perverted and unnatural political order, the power of poor, that occurs only for a very short time during the political crises. Democracy began to name government by the people or majority only from the first bourgeois revolutions.

The author believes that the idea of government by the people is deeply populist and it is against the laws of nature and society. The generally accepted classification of political reactions does not take into account the useful properties of hierarchy for the society and completely identify the socially useful and legally enshrined in corporate affairs principle of one-man management with totalitarian regime.

Currently not a single “color revolution” is not without a number of slogans and populist perceptions about human being and society presented in the end of the XVIII century. The spread of “democracy” does not involve the assistance in economic development and in the establishment of the high social standards typical for west countries, but on the contrary preserve poverty and backwardness of world periphery.

The author comes to a conclusion that it is necessary to develop the more modern and adequate perceptions about politic reactions taking into account the explanations of natural sciences. In the authors view the democracy constitute “soft” hierarchy that admit the majority of the people to the acceptable social status in conditions of missing the firm competitive relations in the society. Solidarity among people, consensus of the interests, moral and political unity as a result of approximately equal social status, social stability and mobility, the lack of deep social division are the main characteristics of the democracy. Totalitarianism can be defined as a violence from the side of society or collective towards person who does not want follow antihuman consumer values.

The article deals with the problems of introducing a risk-based approach to the regulation of federal state supervision in the sphere of circulation of medicines. The main drawbacks of the risk-based approach regulation in the regulatory legal acts of the Russian Government and Roszdravnadzor are highlighted. The discrepancy of certain provisions of the relevant acts to the principles of administrative law and the Code of the Russian Federation on administrative offences in the part relating to the assessment of the legal value of the period during which a person is considered to be subjected to administrative punishment is noted. Measures to improve the risk-based approach to the organization of state supervision in the sphere of circulation of medicines are proposed. In particular, data on the degree of compliance of the objects of control with the requirements of good practices (GxP, including GMP, GPP, GDP, etc.) and data on the presence of the objects of control systems of pharmaceutical compliance are proposed in the assessment of the risk of harm. The authors formulated the definition of the concept of pharmaceutical compliance. It is concluded that the inconsistency of the administrative-legal and criminal-legal policies to combat cartels in the EAEU member States creates significant risks to achieve the goals of creating a single market of medical products in the Eurasian Economic Union.

The article presents Herbert Hart’s theory of definition in the context of modern analytical legal philosophy. Dissatisfaction with the applicability of the traditional method of definition by the genus and differentia to the elucidation of legal concepts led Hart to the development a new method of definition. It is shown that Hart not only modifies the paraphrase of Jeremy Bentham, but also tries to adapt to the analysis of legal concepts the definition in use borrowed from analytical philosophers and logicians. It has been established that the key point of Hart’s method is that instead of defining a separate term, it is necessary to consider a statement, where the utterance plays a characteristic role, and is explained by specifying the conditions under which the entire statement is true. Some difficulties that arise when one uses this definition in the framework of the truth-conditional semantics are considered. In particular, it is shown that Hart uses open sentences of the form “X has a right” in its definition, which differ from closed sentences, primarily because they contain free variables with indefinite range of values. This uncertainty does not allow us to attribute to them the truth-value. The concepts of truth and falsity apply only to statements that are expressed by closed sentences. Thus, Hart’s claim of a special semantic nature of legal concepts and a special epistemological task of definitions in jurisprudence is reflected in his theory of the truth-conditional definition — a kind of contextual definition.