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Legal thought: history and contemporarity
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3–18
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Bondar Nikolay - Judge of the Constitutional Court of the Russian Federation, Doctor of Jurisprudence, Honoured Scientist of the RF,Honoured Lawyer of the RF Address: Galernaya St., 1, Saint Petersburg, Russian Federation, 190000 Subject to the methodology of the philosophy of law methods combining positivism and natural law, the article makes a grounded interpretation of constitutionalism as a philosophy of law category. Constitutionalism is shown as a unity of public authority, social and cultural origins reflecting universal values of the modern civilization which are represented in the patterns of democratic society and state on the basis of the balance of power, ownership and freedom. Hence, it has been proposed a structural interpretation of constitutionalism as a)doctrinal constitutionalism, expressing a certain theory, a system of constitutional law ideas incorporating moral imperatives; b)normative law constitutionalism characterizing the system of constitutional positivism which is a normative law space of constitutionalism; c)ontological constitutionalism disclosing its potential in constitutional law practice as a complex of relations of political and legal development; d)constitutional mentality represented in constitutionalism as a special form of public conscience reflecting constitutional psychology and constitutional ideology. One of the major attributive signs of modern constitutionalism is constitutional justice. The RF Constitutional court serves as its guardian and a development factor for the whole system of Russian constitutionalism. Constitutional justice makes it topical adapting to the reality, which makes the nature (system of real relations) and a must (legal constitution) closer. This pair allows analyzing the major trends in shaping judicial (living) constitutionalism as a brand-new political law regime of the RF Constitution protection. A special attention is drawn to the methodology of constitutional justice. The analysis of an extensive constitutional law practice, philosophical and mentality pluralism has been interpreted as a fundamental principle of constitutional law control. This presupposes the concept of judicial law where natural law and positive laws of the modern Russian constitutionalism integrate, which opens new opportunities for constitutional law development of Russian statehood recognizing universal constitutional values as an integral part of the current law. |
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19–38
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Savyuk Leonid - Professor, Criminal Law Department, National Research University Higher School of Economics, LLD. E-mail: lk.savyk@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
The article represents the retrospective view of J. Bentham's ideas on the state, law, moral and their historical dependence. They are worth mentioning for liberalization and democratization of political and legal life of modern Russia including criminal legislation. This the area in which the scholar made his view similar to the postulates of the classical theory of criminal law. Bentham developed the theory, grounded the ideas which may be recognized as viable. He managed to study every institution of criminal law, which should encourage criminal law experts to study the theory of the scholar. His analytical method became model in science. His legal theory is one of the best among those of his predecessors and contemporaries including Ch.Montesquieu, C. Helvétius, C. Beccaria. Having rejected common law theory, Bentham and his followers relied on the utilitarian interpretation of law seeking to implement specific social aims. They were the forerunners of the modern economic analysis of law, and in particular criminal law. The subject of legislation is common benefit according to J. Bentham and the main aim is in the benefit and happiness for the mankind – this is the leitmotif of all his works. J. Bentham listened to the demands of real life and implemented his views and theories. He proposed his projects to the governments of many countries including Russia where he lived for several years, corresponded with the tsar Alexander I on participating in drafting legislation. The review of Bentham’s works shows that they were influenced by the transformation processes in the UK which, hypothetically, resemble social and historical changes in the modern Russia. Russia is becoming an early capitalist state being now at the second stage of the process. In this regard, the thinker’s works are of great interest for interpreting Russian interpretation of law. |
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39–50
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Antonov Michail - assistant professor, Department of Theory and History of Law, Faculty of Law, Saint Petersburg Campus ofNational Research University Higher School of Economics, PhD (law). E-mail: mantonov@hse.ru Address: Promyshlennaya St., 17, Saint Petersburg, Russian Federation, 198099 Thе paper describes the landmarks in the life and work of Eugen Ehrlich (1862–1922), the outstanding Austrian legal thinker, founder of sociology of law. The author stresses the importance of Ehrlich’s scientific project for the further development of the sociology of law, reveals the key stages in the evolution of Ehrlich’s theory and gives a short account of the problems which this theory deals with. A special emphasis is made on the connection of state and law in the perspective of sociological jurisprudence and the role of the sociology of law in the issues of administration of law. Eugen Ehrlich known primarily as a founder of the sociology of law as an academic discipline is usually associated with his magnum opusFundamental Principles of the Sociology of Law. At the same time, the work published in 1913 was a result of a many year research of the scholar. Hence, to understand Ehrlich’s theory, it is necessary to take into account all the major works which promoted to shaping up the concept of the sociology of law. Another important area is to study the biography of the scholar with the landmarks of life being covered in the article. Another important problem discussed in the paper is the balance of judicial discretion of legislative clauses and the results of empirical research when formulating individual norms which serve as a basis to make judgements. The sociology of law allows finding a specific rule counterbalancing specific interests in a case as to the total balance of interests protected by legal order. For Ehrlich, this method is a pledge of fairness at a legal proceeding as a social and history quest provides a judge with a wider perspective of social interests – not only those which meet in an argument but those which the judge decided to protect in certain circumstances or those which the judge would protect if he/she were a legislator. Hence, the judge is encouraged to make a fair judgment which - as Ehrlich thought - could be ensured only in the case of revealing and studying all the interests. Thus, the major significance of the sociology of law conception is in justifying the results of empirical research in legal processes to create a scientific guideline to interpret positive law for a legal professional. |
Russian law: conditions, perspectives, commentaries
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51–63
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Oleynik Oxana - professor, Head of the Department of Entrepreneurial Law,National Research University Higher School of Economics, Doctor of Jurisprudence. E-mail: ooleynik@hse.ru Address: Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. |
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64–78
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Alexeevskaya Ekaterina - Senior Researcher, Institute of Problems of Legal Regulation,National Research University Higher School of Economics, LLD. E-mail: anna_gutnikova@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation.
Gutnikova Anna - Director of the Institute of Problems of Legal Regulation,National Research University Higher School of Economics, LLD. E-mail: e.alexeevskay@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The article features the Decision of the plenum of the RF Supreme Court dated June 28, 2012 №17 On examining civil cases on consumer right disputes in court. The authors study the new laws as to interpreting the consumer right legislation by the highest judicial agency among the first instance courts and commentaries to certain provisions of the Decision as they were not grounded properly as to applying the RF law on Consumer right protection. The author draws attention to the definitions of consumer, material defect of a product, as well as the problem with the absence of answers as to applying this legislation to legal relations arising due to notarial actions and rendering legal services to citizens. The authors analyze topical issues of jurisdiction of disputes involving consumers. He article develops the explanations made by the Russian Supreme Court as to the cases submitted to arbitration courts. A special attention is drawn to the rule of alternative jurisdiction of the dispute which is closely connected with the exclusive right of the consumer to submit statements of case to the court provided by part 7 of article 29 of the RF Civil code as well as the application of articles 333 and 395 of the RF Civil Code. A special attention is paid to the compensations for moral harm to the consumer brought by the seller (producer, performer) and its guilt which is provided by law except the occurrence of the force-majeure circumstances. The commentaries have been given on the basis of theory and case practice in the courts of general jurisdiction, arbitration courts and the RF Constitutional court as well as the international law norms. |
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79–86
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Baratova Marina - Senior Lecturer, Department of Civil Law, National Research University Higher School of Economics, LLM (Private Law). E-mail: bma@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. This article features an extended analysis of legal categories family member and residence as a family member. The analysis has been performed on the basis of legal regulation and materials of case practice. Currently, the Russian legislator applies the concept of family member in various legislations including civil, inheritance, family, tax, social security etc. An extensive case practice on housing disputes confirms the relevance of the issue. Our analysis of the legislation and case practice in our country as to family member shows that one should declare the absence of a single concept family member which could be used in various branches of law. Moreover, RF housing law lacks the definition of the concept. A person who may represent the concept differs depending on the area. Hence, one should state the presence of legal ambiguity applying this concept. The article also studies the problem of the concept indisputable and disputable family members. The list of indisputable family members in housing law is complete and this category of persons entitles them to the use of facilities by default. The list of persons belonging to disputable family members is not specified in the RF legislation and is subject to interpretation. Persons from this category do not acquire the right to use facilities by default. The analysis allows making a conclusion that the legislators formulated this legal definition to recognize people relating to the category of disputable family members: a person is entitled to (under RF housing legislation) to claim a legal status of a family member only after the person has been dwelled into the facilities as a family member. |
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87–97
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Ermoshin Grigoriy - Professor, Department of Constitutional Law, Russian Academy of Justice, Active State Advisor of 3rd class. E-mail: germoshin@list.ru Address: Novocheryomushkinskaya St., 69, bldg.A, 117418, Moscow, Russia The article examines the questions relating to the regulation of civil rights and duties of RF judges in retirement, critically analyzes RF acts containing provisions regulating the status of a judge in retirement and gives practical recommendations. These aspects have not been studied before. The author argues that the special status of a judge in retirement derives from the constitutional status of judges. This status implies higher requirements to judges, keep trust to their independence, competence and impartiality. However, some normative acts do not determine the legal status of the judges and in some other norms the status of the judge without powers of authority is similar the status of an acting judge, which has certain grounds. In particular, de-facto judges are deprived of the right to participate in political and public life. The law on the status of judges, 1992 imposed a ban on the party membership, and expressing opinion on public associations. However, the law does not forbid judges in retirement to accept awards and other badges of parties, public associations and even from foreign states. By law, judges in retirement remain part of the judicial community though no forms or ways of participation in the activity of the community are specified. The bodies of judicial community have the right to decide the question on terminating judge’s retirement, i.e. depriving him/her of the right to material support. A special attention is paid to the analysis of public status of the judges who retired and lost the status of the retired judge though not reached the age giving the right to lifetime support (pension). Other aspects of life support of judges in retirement have been revealed. The article poses a question on modernizing the RF legislation on judges. The article also formulates ideas which may positively change the situation. |
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98–111
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Shulakov Andrey - Assistant Professor, Department of International Law, Modern Humanitarian Academy, LLM. E-mail: docent-law@rambler.ru Address: Nizhegorodskaya St., 32, bldg.4, Moscow, Russia The principle of the closest connection involves both international and civil law. The article analyzes the forms of the principle in national legislations and internationally. The author examines the codes of Quebec, Louisiana, legislations, supranational conventions and legal rules as well as theoretical works. The interpretation of the doctrine in the Russian legal tradition, supported by the author, serves as a basis in international private law as the principle is based on achieving the major aim of international law, i.e. revealing applicable law. The article studies the ways of codifying this principle. One of them is to present it as a corner stone of the conflict of laws doctrine which was formalized in norms in most European and North American countries.The other is to codify the principle as an additional clause applied if the norms of the conflict of laws cannot be used. This is the case of the CIS countries, African and Latin American states. Having traced the components of applicable law, i.e. interests, aims, presumptions of the conflict of laws, the author arrives at a conclusion that multiple interests within the conflict of laws may be reduced to public interests interpreted under the RF legal doctrine as general private and group interests. The article explains the difference between the term public interests and the concepts of state interests, common interests, national interests. The author proves that this area merges doctrinal principles of legal branches of Roman-German law and common law, develops the tangible nature of the conflict of laws principle, and the principle of the closest connection cannot be reduced only to the conflict of laws presumptions. This requires sophisticated legal methods and highest professional qualities of law-makers and legal professionals. |
Law in the modern world
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112–125
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Ivanov Eduard - Professor, Department of International Law,National Research University Higher School of Economics, Doctor of Jurisprudence Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. |
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126–133
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Alexanyan Arshak - Postgraduate Student, Department of International Law, Faculty of Law,National Research University Higher School of Economics. E-mail: arshak2006@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. This paper has become a result of the research of concepts international security and national security of a state. The problems of international security remain very topical. The paper analyzes and reveals the structure of such concepts as international security and national security, their commonalities and differences. In particular, the aims of national security are a set of tasks based on the integrity and reliability of a state. International security may be defined as a special condition of interstate relations when all states irrespective of their economic or military power, political or social system, state regime, size and territorial situation implement their sovereignty and equality by finding a balance between national and universal interests following the principles and common norms of international law. The author analyzes the UN Charter, General Assembly and Security Council Resolutions, decisions of UN International Court, documents of international organizations, multi- and bilateral treaties between states, international law doctrine and research of legal academics. Having compared the features of international and national security, the author makes a conclusion that these phenomena of social life differ though interconnected. The author examines the problem of comparison, balance and complementarity of these concepts. |
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134–139
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Toleubekov Ayan Toleubekuly - Postgraduate Student, Department of Constitutional and Municipal Law, National Research University Higher School of Economics. E-mail: yan_826@mail.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The paper analyzes the history of the state and law of Kazakhstan, highlights the genesis of the ideas of parliamentarism in Kazakhstan and suggests a timeline for the formation and development of parliamentarism in the republic of Kazakhstan. Stage 1 (1990 - 1993) is the stage of formation of parliamentarism in Kazakhstan. This period created a legal background for the first representative body of a new nature. The law codified that the highest body of state power was the Supreme Council of the Kazakh SSR elected according to the new principle. The post of President was introduced as well as the separation of powers principles. Despite the immaturity of the first representative body and lack of legislative activity, it was an efficient force able to oppose a no less stronger president N.A. Nazarbaev, which is a characteristic feature of the period. Stage 2 (1993 - 1995) starts with adopting the Constitution of the Republic of Kazakhstan as of January 28, 1993. It codified the fundamentals of parliamentarism. This stage is characterized with a bicameral representative body, presidential form of government and the absence of the check and balances principle for branches of power in the Constitution. This period keeps the parity of representative and presidential powers. Stage 3 (1995 - 2007) starts with adopting new Constitution of the Republic of Kazakhstan as of August 30, 1995 which provided for a bicameral structure of parliament of two chambers: the Senate and Mazhilis. The period is characterized with adopting constitutional laws On Parliament of the Republic of Kazakhstan and Status of its Deputies of October 16, 1995, On the Government of the Republic of Kazakhstan of October 18, 1995, On Judicial System and Status of Judges of the Republic of Kazakhstan of December 25, 2000 codified the status and functions of every branch. Stage 4 (2007 – to present) begins with adopting the law On Introducing Changes and Amendments to the Constitution of the Republic of Kazakhstan of May 18, 2007 signed by the President May 21 2007. This period is characterized with the transition of the republic from presidential to presidential-parliamentary form of government. This law introduced relevant changes and norms fixing powers of the Senate and Mazhilis strengthened the legal status of the chambers of parliament. The balance between the branches shifted. Part of the powers of the President was transferred to Parliament, i.e. the right to form a government, two thirds of members in the constitutional Council and the Central Election commission. The government was responsible not only before the head of state but Parliament. The changes also concerned the number of deputies elected and appointed to the Senate and the Mazhelis and their legal status. In particular, the responsibility of the deputies before voters and chamber strengthened. New grounds to unseat a deputy of the Mazhilis if he/she he leaves or is expelled from a political party, termination of the political party which had belonged to parliament, which made him too dependent on the political party he belongs to. |
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140–151
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Vishnevskiy Alexander - Professor, Deapartment of Entrepreneurial Law, Faculty of Law, National Research University Higher School of Economics, PhD (Law) National Research University Higher School of Economics. E-mail: aavishnevsky@gmail.com Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. |
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152–162
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Talapina Elvira - Senior Researcher, Institute of State and Law, Russian Academy of Sciences, PhD, LLD (Law). E-mail: talapina@hotmail.com Address: Znamenka St., 10, Moscow, Russian Federation, 119019 The paper features the approach in the current French legal doctrine, laws and legal practice as to personal data. The research has involved the analysis of the French Constitution of 1958, civil and criminal codes, and ordinances. The author also studies the EU conventions and relevant judgements of the French Constitutional Council. Wide and multidimensional problem of protecting personal data is being discussed in the article from three different views: 1) right to privacy as to health information, 2) consumer rights, 3) security of processing and storing personal data. Loopholes in constitutional law regulation of the problem and their consequences are also part of the discussion. The article studies the balance between common and specific in the approach of French legislators and EU law to regulating these problems. The author makes a conclusion that the current approach to data protection in France is a mix of French and European norms as well as judicial rules. Traditions of administration, etatism typical of the French state and evident in its constitutional regime inevitably contradict modern and liberal approach of the EU. The EU’s specific approach is caused by the evidence of neutrality of the latest information and communication technologies and involving public in the regulation of the Internet. The necessity in data protection does not cause any objections in France at the level of legal doctrine and the Constitutional Council with the reputation of the most European institution in France. However the gap between the internal administration and legal practice under EU standards has not been bridged. There is no doubt that a full-fledged data protection requires relevant legal and technological measures, which has not been implemented in this state. |
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163–176
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The author considers the definitions of state in the works of Eurasianism ideology leaders of the 1920s – 1930s, i.e. N. Trubetzkoy, N. Alexeyev and L. Karsavin and compares their views with the conceptions of foreign and Russian scholars including H. Kelsen, R. Kjellen, N. Ustryalov, N. Berdyaev. The article stresses that the representatives of Eurasianism developed the so-called arithmetical approach to state reality which differentiated three aspects of state – territory, population and state. Studying this approach geopolitically, Eurasionists considered state as an economy based on the environment – the territory as a substantial origin; state as a moral phenomenon; state as law. However, having revealed the features of state specified by the Eurasianism ideologists, the author makes a conclusion on the inner controversy of state and law views expressed by the representatives of pure Eurasionism. L. Karsavin assumed that a people and a state are individuals, i.e. the whole. N. Trubetzkoy considered the development of a state as a derivative from the life of its people as only the people may be a personality but not the state. N. Alexeyev used the term succession of relations for any collective entity. The inner controversies in the views of the representatives of Eurasionism caused challenges in shaping up a single political and law program and thus lack of its vitality in the modern legal context. |
Law in Figures
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177–183
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Loba Vsevolod - Interim Vice Rector on Science and Innovations, Armavir State Pedagogical Academy, LLD. E-mail: vsevolodka@inbox.ru Address R. Luxemburg St., 159, 352901, Armavir, Krasnodar region
Safronova Elena - Professor, Department of Theory and History of Law, Belgorod State University, Doctor of Jurisprudence. Address: Pobedy St., 85, 30815, Belgorod Yakushev Alexander - Professor, Head of the Department of Theory and History of State and Law, International Innovation University, Doctor of History The aim of the authors is to make an outline and thematic classification of works of Russian criminal lawyers who defended their dissertations on criminal law at the Universities of the Russian Empire between 1815 and 1917. The objectives of the article include collection, processing, commenting factual data on ‘dissertation load’ of universities, subject matters of dissertation research, official opponents. The statistics has incorporated the data from seven universities in Kazan, Moscow, Novorossiysk, Petersburg, Tomsk, and Kharkov. The information on the universities at Derpt and Vilno is lacking. As a basis for the classification, the current structure of Russian criminal law was taken. It was divided into 22 subsections. On the basis of summing up the material, the authors have made the following conclusions. The priority on defending dissertations on this branch belonged to Moscow and Petersburg universities. The classification of subjects has allowed to establish that the majority of dissertations on the history of criminal law institutions (15 of 90). The second place is taken by the research of crimes (9 dissertations) and the third place is taken by the research of fundamentals of criminal law (7 dissertations in every subsection of the classification). A fewer number of dissertations were devoted to the subjective nature of crimes, crimes against honour and dignity and the measure of restraint (3 dissertations on each subject), on proving at a criminal process, crimes against religion, relief from punishment and liability (2 dissertation on each subject). The least number of dissertations concerned the objective aspect of crime and judicial statistics (one on each subject). As to participating as an opponent, professor I. Foynitskiy from Petersburg University participated most frequently. Official opponents on criminal law often had specialization in civil law, international law and political science. In some cases the opponents had no academic degree. These facts are considered by the authors as a proof of high professional background of legal scholars. |
Scientific life
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184–191
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Mashkova Ekaterina - Researcher, Institute of Legal Research,National Research University Higher School of Economics. E-mail: emashkova@hse.ru Address: National Research University — Higher School of Economics, 20, Myasnitskaya str., Moscow, 101000, Russian Federation. The aim of the panel is to analyze the extent to which Russians trust law, in particular laws and legal acts, discuss the causes of the lack of trust and to give recommendations. Positive sides have been shown – discussion of law drafts on the Internet, access of citizens to legal information including by-laws. For the first time for many decades some state corporations and ministries have developed moral and legal regulations (soft law) – codes of conduct with self imposed obligations. However, many still do not find it obligatory to follow legal acts, keep opposing law and ethics considering them incompatible. The attitude to law as a social value has not shaped. The system of introducing codes has been simplified and got inner contradictions. Legal nihilism has become destructive which is evident. It goes together with amorality. Ruling establishment does not identify itself with law and does not enjoy trust or respect, which enforces disagreement in actions of public forces, which in turn has caused mass alienation of citizens. Russian legal culture lacks this integral component which questions the existence of such culture in the country. The panelists recommended to transfer to legal monitoring which will evaluate better the results of the acts and the attitude of lawyers and laymen to them., ensure the access of psychologists, sociologists, economists to law making; coordinate formal law and traditional law (common law); avoid overlapping legal acts of the Federation and its regions. It was proposed to impose a moratorium to alter any normative act for a fixed period. The initiators of a draft of law or legal act should be deprived of the right to make laws if the law may require changes in the near future. |
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