№ 5 (134) / 2020

ROUND TABLE «THE ETHOS OF LEGAL SCIENCE: IDEALS AND REALITIES OF RESEARCH PRACTICES»

Vlasenko N. (Moscow) Legal science and scientists: do not overstep the mark

By using specific examples, the author addresses one of the most pressing problems associated with the ethos of science – the issue of borrowing ideas and texts in scientific publications. He raises the question about the boundaries between «my» and «their» ideas. Particular attention is paid to so-called transformations of the theory of state and law ideas in branch sciences and their «defence» as something new in science. The author refers to such phenomena as the presentation and replication of previously defended scientific provisions, as well as the doubling of terminology, associated primarily with the use of metaphors in scientific texts.

Key words: science, scientific activities, ethos of science, plagiary, academic novelty

Lapteva L. (Moscow) On the tasks and bounds of regulating the moral bases of scientific activities

The author refers to the historical experience and the peculiarities of the formation of the ethos of science in the past educational practices. She focuses on the «corrosion» of morality in scientific activities. Special attention is paid to the problem of enhancing a scientific reputation, as well as to the system of normative regulation of the scientist’s responsibility.

Key words: science, scientific activities, ethos of science, scientific reputation, professionalism, regulation of scientific activities, scientist’s responsibility

Romashov R. (Saint Petersburg) Transformation of the ethos of legal science in terms of cyclogenesis of the Russian state legal system

The author considers the ethos of juridical science as a system of views that reflect the individual and corporate opinions of scientific legal community about the professional ethics both in academic and practical (law-making and law-enforcement) activities. He reveals the historical conditions for the formation of the ethos of legal science and education in pre-revolutionary, Soviet and post-Soviet Russia. The author highlights the main trends in the development of ethical foundations in line with ensuring the authorities’ needs and state interests. It is concluded that, nowadays, the ethos of legal science is a complicated configuration of ethical provisions, norms, values and principles, which can be divided into two groups and can be conditionally called dualistic (pro-government) and pluralistic.

Key words: science, ethos of science, cyclogenesis, ethical component of legal science and education

Kodan S. (Yekaterinburg) A teacher and a student in terms of the ethos of legal science

The article focuses on the place and role of teachers in the formation of a scientist and maintaining the ethos of science. The author shows the importance of translating the principles and imperatives of the scientific ethos into the consciousness of the younger generation of scientists, as well as the impact of personal knowledge and samples of research practices of teachers on the formation of a researcher. Special attention is paid to the importance of scientific memory and scientific and memorial practices in the preservation of traditions and continuity in jurisprudence.

Key words: science, scientific activities, ethos of science, scientific leadership, ethics of scientific communication

Tikhonova S. (Saratov) The role of academic schools in the reproduction of the ethos of legal science

The article analyses an academic school as a communicative system for the reproduction of the scientific ethos. The author shows the role of vertical communication in academic schools and examines its advantages and disadvantages in the context of the development of horizontal communication networks of «big science». An analysis of the features of the legal science institutionalization leads to the conclusion that vertical hierarchical communication systems are dominant in its organization and strengthen the position of the academic school as a key agent for the reproduction of the ethos of legal science in current conditions.

Key words: legal science, ethos of legal science, academic school, academic communication

Kozhevina M. (Omsk) The ethos of science and modern legal knowledge: the continuity and transformation of traditions

In current legal science, there are organizational and methodological transformations caused by political, social, mental changes of Russian society. Post-nonclassical scientific rationality has determined the vector of development of legal science, provoked the search for new forms of self-realization, and raised questions that are closely associated with the ethos of science. Among the most significant issues requiring ethical and methodological reflection, there are issues of the continuity in science, the preservation of traditions, the limits of their transformation in a changing world. According to the author, it is important to determine the role of the scientist and the scientific community in the formation of new rules for the internal and external interaction of members of society, the preservation of scientific values and scientific autonomy of legal science. The article analyses some significant aspects of the ethos of modern cognitive activity and shows the most vulnerable (from the ethical and scientific point of view) areas of development of domestic legal science.

Key words: legal science, scientific tradition, ethos of science, history of science, sociology of science

Tolstik V. (Nizhny Novgorod) Deviant behaviour in science and ways to overcome it

The author touches upon the problem of deviant behaviour in science – deviations from the moral and ethical requirements for scientific activity. He analyses the foreign and domestic experience in studying various manifestations of deviant behaviour in science and practices of adopting and implementing ethical documents. The author underlines the need to develop and adopt in Russia a code of science ethics, which will systematize the basic moral imperatives of behaviour in science, make the normative regulation of scientific activities more definite and also become a normative basis for recording violations of scientific ethos. Particular attention is paid to the reasons of deviant behaviour and ways to overcome it in science.

Key words: science, scientific activity, ethos of science, moral and ethical regulation of scientific activity, deviant behaviour in science, code of science ethics

Ponkin I. (Moscow) The ethics of scientific discussion

The author focuses on one of the key components of the ethos of science – the ethics of scientific discussion. He mentions that the skills of scientific discussion had fallen into despair and the scientific community needs to develop general requirements for discussion practices. The author emphasizes the special meaning of scientific discussions for the awarding of an academic degree and proposes a set of criteria to assess dissertations.

Key words: science, scientific activities, ethos of science, scientific discussion, criteria to assess scientific works

Baranova M. (Nizhny Novgorod) Novelty of legal research in the context of norms of the ethos of science

The progressive development of legal scientific activity as an integral social phenomenon requires the recognition of a special value of novelty. The norms of the ethos of science developed in the 20th century are focused on ensuring the quality of new knowledge. Moving away from the basic idea of novelty in legal science in favour of a financial component of research may lead to the scrapping of the normative system of the ethos of science focused on ensuring the quality of knowledge. An artificial shift in attention to the utilitarian nature of science can lead to an unjustified rejection of the value of the thought process, fundamental knowledge that provides an opportunity to see new horizons of research.

Key words: novelty, ethos, science, norms, law, jurisprudence, researcher, knowledge

Kornev A. (Moscow) A source and ethical aspects of its interpretation in historical and legal science

The article touches upon the problem of sources that the researcher selects and evaluates. It also investigates the moral and ethical qualities of a scientist. Legal science cannot stand aside from the ethos of science and, at the historical, theoretical and legislative level, is obliged to work out the problems of observance by the scientific community of the generally accepted norms and principles of scientific activities.

Key words: source, document, methodology, science, political and legal doctrines, practice, theory, ethos

Gracheva E. (Moscow) The ethos of financial and legal science

The article analyses some manifestations of the ethos of financial and legal science at the present stage. It is noted that the ethos of legal science in general and of the financial law in particular does not remain unchanged but depends on the objective economic and social needs of the development of society, the presence of a conscious need for scientific knowledge and a willingness to follow scientific recommendations. Currently, financial and legal science should form new knowledge, on the basis of which specific mechanisms and tools for the legal regulation of financial relations in the context of digitalization and globalization will be proposed.

Key words: ethos of financial and legal science, digitalization, subject of financial law, goals of financial and legal science, hierarchy of the Russian legal sciences

Syrykh V. (Moscow) Service to science and the fatherland is the honorary duty of Russian jurists

The article is devoted to the principles of serving to science and the country as the foundations of the development of jurisprudence. The author updates and analyses the main reasons and manifestations of servility and unscrupulousness in legal science. He underlines the need to develop an ethical code of legal science, which would define and consolidate the principles of scientific ethos in jurisprudence.

Key words: legal science, scientific activity, ethos of science, servility in legal science, ethical code of legal science

THEORY OF LAW AND STATE

Tarasov N. (Yekaterinburg) Mechanism of legal regulation: the emergence of the concept

The article is devoted to the genesis of the concept of «mechanism of legal regulation», the mainstreaming of this concept in Soviet legal literature, as well as philosophical and methodological foundations of its elaboration and its role in the formation of the theory of legal regulation. The author justifies the choice of specific instruments of his research and provides their methodological qualification. The evolution of the vision of legal regulation, as well as the idea and criteria of the distinction between legal regulation and legal effect are analysed. The article discusses the theoretical meaning of the mechanism of legal regulation and the formation of the theory of legal regulation.

Key words: law, legal effect, legal regulation, mechanism of legal regulation, structure, object, subject matter, artificial, natural, notion, meaning, concept

Ponomarev D. (Yekaterinburg) Juridical designing and methodological identity of jurisprudence: the link between the problems in the legal thought space

The author demonstrates the connection between the problem of methodological identity of jurisprudence and discussions regarding the essence of juridical designing. On the example of legal thought history (pandectists’ views, R. Jhering’s ideas, prerevolutionary Russian, Soviet, and modern jurisprudence) he shows that particular interpretation of juridical designing (integrated or not integrated into the positivist ideas of scientific cognition) is determined by the approach to methodological specificity of jurisprudence. On that ground, it is proposed that the current problem of diversity and uncertainty of the notion of juridical designing might be solved through the deep consideration of the issue of jurisprudence methodological status.

Key words: methodology of jurisprudence, juridical designing, dogmatics, classical scientific positivism

INTERNATIONAL LAW

Tolstykh V. (Novosibirsk) Recognition and non-recognized states at the beginning of the XXI century

The specificity of the recognition problem is that a simple, definite and precise action turns out to be the subject of sophisticated speculations that have been going on for several centuries, but have not yet led to the formation of a clear and holistic legal regime. In this regard, recognition has a great methodological value, because allows to determine the true nature of international law, that is the interaction of two logically incompatible ideas – the idea of natural law (justice) and the idea of positive law (will). The recognition problem was updated in connection with the collapse of the USSR and Yugoslavia; the EU’s reaction has radically changed the classical recognition regime and its function – henceforth, recognition has become a form of control and influence on domestic and foreign policy. Claims against unrecognized states can often be countered, however, the objective deficit of statehood and democracy cannot be denied. This deficit is due to the rise of nationalism, which, in turn, is caused by the depreciation of the foundations of state power (legitimacy). As a result, all affected parties are interested in non-recognition, however, their policies include opposing patterns: the assistance in settlement and the solution of humanitarian problems. These patterns have serious defects, since they tend to freeze the conflict and do not imply the general protection of the human rights. Proposals for solving the problem of non-recognition are often palliative, i. e. concern improvements to existing tools. They can play a positive role, but are not able to radically improve the situation: to stop aggressive nationalism, to prevent ethnic conflicts, and to ensure the full use of human rights. This requires more serious measures affecting the foundations of international law: criminalization of the policy of national unification, non-application of the principle of uti possidetis, departure from democratic procedures, fixation of a general regime for the protection of human rights, etc. They, however, are unlikely to be implemented. The general impression is the artificiality of the problem of non-recognition and its context, i. e. ethnic conflicts caused not by objective contradictions but by the very logic of modern history.

Key words: international law, recognition, unrecognized states, sovereignty, national policy, self-determination, territorial titles

CRIMINAL LAW AND PROCEDURE

Degterev A. (Astrakhan) The object and the victim of a crime under Art. 277 of the Russian Criminal Code

The article discusses in detail the points of view on the object and the victim of a crime under Art. 277 of the Criminal Code put forward in science. The author comes to the conclusion that the crime mentioned-above is two-object: the main object covers social relations that characterize the political system of the Russian Federation, i. e. the totality of various political institutions, socio-political communities that exercise power; additional one concerns the inviolability of a public official and a public figure. The main criterion for classifying the victims of the crime under Art. 277 is the relationship between the activities of the latter and the political system of Russia.

Key words: public figure, statesman, political system of the country, public associations, state power

Kulikov A. (Yekaterinburg) Negligence in the Criminal Code of the Russian Federation: lack of sanity or a kind of force majeure?

The author, based on the analysis of legislation and law enforcement practice, examines negligence as a type of careless form of guilt enshrined in Part 3 of Art. 26 of the Criminal Code of the Russian Federation. He points out that this norm is not consistent with other provisions and institutions of criminal law. The author identifies the reasons for judicial errors in establishing «negligent» guilt related to the wording of the criminal law and suggests ways to eliminate them.

Key words: guilt, carelessness, negligence, sanity, force majeure

CIVIL LAW AND PROCEDURE

Gabaraev E. (Moscow) Security assignment of a monetary claim and financing under a security assignment of a monetary claim: problems of legal qualification

The article is devoted to the problem of unjustified classification of various civil legal structures as an unnamed means of securing obligations. The author investigates the legal nature of the security factoring (financing against a security assignment of a monetary claim), as well as of the security assignment of a monetary claim. The article raises a question about whether it is possible to use a financing mechanism for the security assignment of a monetary claim to secure other civil obligations. Based on the materials of judicial practice, the author demonstrates the erroneous application by civil law entities of the construction of security factoring, as well as the security assignment of a monetary claim. The article analyses various models of contractual relations that arise when using the construction of financing for the assignment of a monetary claim. The features of the security factoring are identified. Similarities and differences between the security factoring and the security assignment of a monetary claim are determined. The security assignment of a monetary claim is defined as a universal security measure that guarantees the rights and legitimate interests of the creditor in the obligation. At the same time, the mechanism embedded in the construction of financing for the security assignment of a monetary claim is considered as a special security measure, which is quite similar to the security assignment of a monetary claim.

Key words: security assignment of a monetary claim, security factoring, security measure, means of securing an obligation, assignment of a monetary claim, assignment

LABOUR AND SOCIAL LAW

Istomina E. (Yekaterinburg), Fedorova M. (Saint Petersburg) The ILO’s role in the development of a risk-based approach to the legal regulation of labour and social security

The authors substantiate that the protection against risks requires a risk-based approach to the implementation of legal regulation in the relevant spheres of public relations. They give some examples of the application of this approach in the state supervision and control, as well as in labour relations. It is concluded that the risk-based approach to the legal regulation is universal and needs to be extended to the social security system as well. The definition of the risk-based approach to the legal regulation of labour and social security is formulated. The authors analyse the ILO conventions and recommendations on employment, labour relations, labour protection, and social security, and, on this basis, show the ILO’s contribution to the development of the risk-based approach. They come to the conclusion that the models and standards of the protection against risks, including social ones, developed by the ILO, should be taken into account when improving the legal regulation of labour and social security relations in the Russian Federation.

Key words: risk, social risk, protection against risks, risk-based approach, labour, social security, ILO

PAGES OF HISTORY

Baev V. (Tambov) «Economic constitution» of united Germany: the era of bismarck

The author believes that we can talk about the economic constitution in the country when its economic life is organized by a system of norms. The article examines what was done by the German Chancellor in the last 30 years of the XIX century for the legal organization of economic life, as well as the impact of the new economic order on the socio-economic and political development of the German state and society. The author focuses on the tax and customs policy of Otto von Bismarck. Its bottom line is that the burdens of the state arising from the performance of its tasks should be fairly distributed among all subjects of the social organism so that they properly perform their functions in the national economics. It is stated that the policy of protectionism pursued by Bismarck to protect the domestic producer and contested by the adherents of the free trade principle had highly accelerated the development of German industry. The author came to the conclusion that Bismarck, while ensuring the political power of the Prussian aristocracy, was aware of the need to strengthen the legal basis for the deployment of the bourgeois resources of German society, but with the mandatory participation of the state.

Key words: Bismarck, Germany, Freiburg school, ordoliberalism, economic constitution, taxes, duties, protectionism