Law. Journal of the Higher School of Economics

Essence and Hypostases of Law: Development of Integrative Understanding Law

2026-06-18T11:16:37+03:00

The article is an attempt to develop and justify the author’s concept of an integrative understanding of law. According to the authors, integrative legal understanding becomes especially necessary and relevant in the context of postclassical scholar rationality, striving to overcome contradictions between the main classical approaches to the concept and essence of law. The paper shows these approaches are not ideologically views of law that are antagonistic to each other, since they are inevitably united in their ideas about the essence of law as a social regulator, bringing to the fore various aspects (hypostases) of the unified essence of law, which creates theoretical prerequisites for the creation of a unified (integrative) legal understanding. The purpose of this work is to study the relationship between the essence of law and its hypostases, which are interconnected and mutually complementary manifestations of the essence that are subject to philosophical understanding and theoretical knowledge. The following tasks are addressed: to examine the main hypostases of law as a means of constructing legal reality, a social regulator, a method of conflict resolution, a means of social communication, etc., to demonstrate the relationship between the hypostases and features of law, to reveal the significance of legal freedom as an essential dimension of law, and to explore the implementation of the definition of law in various modes of legal existence. The article concludes the category of the essence of law, that serves as a worldview prerequisite for its theoretical knowledge, is not explicable by rational-discursive means. According to the authors, the essence of law is revealed through a set of hypostases that form the basis of the formal-logical and theoretical definition of law. The features of the definition are related to the hypostases of law, which are specific to different modes of legal existence. In practical activities, various features of law can be taken as a basis, which leads to pluralism and multiple definitions of law used by lawyers for practical or didactic purposes. As demonstrated in the work, this pluralism does not indicate the incompatibility of the main approaches to defining law and may be overcome at a higher level of theoretical understanding, namely, at the level of understanding the aspects of law that manifest different aspects of its essence.

A New Direction in Modern Anglo-American Legal Theory

2026-06-18T11:17:09+03:00

The study examines the genesis of inclusive legal positivism, its key problematic issues, and its place within contemporary Anglo-American legal thought. The subject of the research is the discourse emerged in the second half of the 20th century in the scholarly community of the common law tradition. The discourse revolved around a critical reflection on H.L.A. Hart’s legal philosophy, specifically concerning the relationship between law and morality, within the common methodological framework of modern analytical jurisprudence, which ultimately led to the formation of this school of thought. The methodological foundation of the work is a complex of cognitive methods, including dialectical and historical methods, general logical techniques, as well as the methods of conceptual analysis and comparison. The research posits H.L.A. Hart’s primary opponents, namely R. Dworkin, L.L. Fuller, and J. Finnis, have identified a weakness in his theory regarding its ability to explain the role of legal argumentation in law, as well in applying constitutional legislation and judicial decision-making are often based on legal principles and moral reasoning. It is concluded in an attempt to address these problematic questions, the school of inclusive legal positivism became distinct within contemporary Anglo-American theory, a position first conceptually formulated by W. Waluchow, key representatives of this school also include M. Kramer, K. Himma, J. Coleman, and N. MacCormick. An analysis of leading inclusive positivists’ views allows for the definition of this school of thought, which, in addition to recognizing the formal properties of law, accepts the conceptual possibility of incorporating moral requirements as additional means of maintaining normativity of a legal system. An observation formulated in the course of the research is a distinctive feature of inclusive positivism is its reliance, for justifying its theses, predominantly on the practice of the common law tradition and its appeal to arguments that, in effect, blur the boundaries between different approaches to understanding law. Consequently, the author identifies a number of problematic aspects of this school, including: insufficient connection with legal reality, contextual limitations, and an idealization of social processes within the framework of liberal discourse.

Theory of Will in the Civil Legal Capacity of Natural Person

2026-06-18T11:17:21+03:00

The article uses historical and comparative legal methods to propose a theory of will that explains the legal personality of a natural person, recalling that this person, as the original and natural subject of law, is as independent as possible in choosing the motives of his actions, and acts according to his will and in his own interest. The thesis that the subject is free will historically influenced the creation of the category of legal personality, but then it was forgotten, turned into an axiom transferred to the archive. The author insists free will has legal significance at all levels of its formation. Judicial practice has already encountered the volitional characteristics of the subject in cases of transactions committed under the influence of violence, and in lawmaking, the fact that natural person could allow or prohibit the using of his image or name should not be ignored in regulation of contemporary digital and medical relations. Unfortunately, the connection between the will and the subject itself is somewhat underestimated in the modern theory of civil law. Because of it the lack of knowledge about the free will of a person and connection of free and age, free will and health leads to the fragmented regulation. The author disagree that minors or people with mentally decease have no will, and suggests distinguishing between several levels of willpower. If parents or guardians give consent to the treatment of a minor or to use their child’s image for commercial purposes, their idea of what is true and beautiful may not coincide with the child’s own idea. Therefore, it is necessary to protect the rights of the child, but at the same time it is impossible to allow an unscrupulous entity to cause losses by revoking the old permission given by his parents. The theory of will allows to find a fine line between trust in the will of a legal representative and the freedom of a legal representative to take on responsibilities on behalf of the child. In particular, with regard to the already given permission to use the image, you can set a requirement not to expand the scope of use. For example, you cannot prohibit the creation of an already created object, but a modern way of using it requires a new consent.

Theoretical and Methodological Issues of Constructing System of Financial Law Categories

2026-06-18T11:17:36+03:00

The article examines methodological aspects of constructing a categorical system of financial law, understood as a complex hierarchy of the categories of Philosophy, Economics, Politics, and Law. Specific methodological issues in constructing the financial law categories system are raised, a number of theoretical premises are proposed as starting methodological postulates for its construction, and the functional significance of its heuristic construction is substantiated. While defining concept of a financial law category, the issue of finding an «initial» category of financial law is raised, emphasizing competition between the categories of «finance,» «financial system,» and «state financial activity» from perspective of a law-forming character. Issues of intersectoral interaction between categories and concepts are analyzed (using the conceptual series «obligation,» «financial obligation,» «expense obligation,» and «monetary obligation» as examples). It is proposed to classify «proper» financial and legal categories as analytical subject categories — finance, budget, tax, money, and currency and legal synthetic categories, formed through synthesis of theoretical, general legal categories, and subject analytical categories: financial legal relations, budgetary legal relations, tax legal relations, monetary legal relations, and currency legal relations. The functional purpose of the heuristic construction of a categorical system of financial law is substantiated: defining subject matter of financial law as the most relevant and pressing task of the contemporary financial and legal scholarship. Issues of distinguishing between financial and civil legal relations are raised. Based on the analysis of scholarly sources, four approaches to defining the «initial» category of financial law are identified, based on that representatives of the relevant approaches structure the branch of financial law and determine its subject matter. The categorical system of financial law and law in general has a hierarchical structure, in connection with that it is concluded that the issue of systematization of financial law, caused by the theoretical need of defining its subject, is derived from the issue of finding satisfactory grounds for identifying branches of law or, more globally, systematization of law in general, since structure “branch of law — sub-branch — legal institution” may not be the only one recognized as appropriate one.

Derivative Constitutional Law Enforcement: Concept, Mechanism and Place in the System of Law Implementation

2026-06-18T11:17:48+03:00

The article is devoted to the substantiation and disclosure of the category of «derived constitutional law enforcement» as a special form of implementation of constitutional norms in the context of a developed system of sectoral legislation. The starting point of the study is the observation that in the vast majority of cases, the law enforcement officer does not directly refer to the Constitution, but to the laws and regulations specifying it. This circumstance casts doubt on the doctrinal ideas about the direct effect of the Basic Law as the main mode of its implementation. The purpose of the work is to introduce the category of «derived constitutional law enforcement» into scholar circulation, to define its concept, identify its essential features, reveal the mechanism and determine its place in the system of constitutional and overall legal regulation. The methodological basis of the research consists of general academic (dialectical, systemic, structural and functional) and private scholar (formal legal, comparative legal, interpretative) methods, as well as a method for analyzing law enforcement. The author’s definition of derived constitutional law enforcement is formulated as a process of authoritative activity of competent authorities, within that constitutional norms are implemented indirectly — through the application of legal acts specifying them. Its main features are revealed: indirect (multi-layered) character, hierarchical connectedness, concretization as a way of implementation, normative secondary nature of applied acts, controllability. The mechanism of derivative law enforcement is revealed as a «chain of mediation», that includes four levels: a constitutional norm, an industry law, by-laws, and an individual law enforcement decision. The derivative law enforcement in the activities of courts and executive authorities is analyzed, and the special role of the Constitutional Court as a guarantor of the preservation of constitutional meaning in the process of multi-layered implementation of constitutional norms is shown. The novelty of the study lies in the substantiation and introduction of the category of «derived constitutional law enforcement» allowing to describe the real mechanism of the implementation of the Constitution in a new way. It is concluded derivative constitutional law enforcement is the dominant mode of Constitutional implementation in a developed system of sectoral legislation, and its impact depends from the quality of laws, the level of legal awareness of law enforcement officers and the activities of constitutional control bodies.

Sustainable Development of Indigenous Peoples (International Model of Legal Regulation)

2026-06-18T11:17:54+03:00

In the article author notes the international-legal regulatory formula for the sustainable development of indigenous peoples is assumed to be a paradigm for national and subnational implementation practices. However, the lack of a unified universally recognized definition of the concept of «indigenous peoples» complicates the implementation of the functional-target vector for achieving their sustainable development. In order to construct the concept, the author proposes a differentiated approach that classifies the criteria for qualifying indigenous communities based on the ranking of imperative and conditional-imperative features. It has been established that a pluralistic dispersed model has actually been formed at the international level, according to which the sustainable development of indigenous communities (with different semantic meanings for this population group) is reproduced in differentiated legal acts of international law. It is emphasized that disaggregated data is a necessary resource for qualifying the parameters of achieving sustainable development of indigenous peoples, allowing for the identification and verification of impact factors, the configuration of adaptive mechanisms for optimizing their accounting and application, and the development of appropriate tools for achieving the specified goals and objectives, as well as the appropriate measurement of their implementation with the prevention of variable consequences. At the same time, it is pointed out it is important to form and apply a system of indicative assessment of disaggregated data used in relation to indigenous peoples. In turn, several provisions of the main international legal acts on the sustainable development of indigenous peoples do not provide for the use of disaggregated data, and they do not reflect a system of correct indicators. In the article the author also argues for the importance of taking into account the traditional knowledge and practices of indigenous peoples when modeling disaggregated data and indicators for assessing the achievement of goals and objectives in the field of sustainable development. Author suggests using the principles of proportionality, subsidiarity, participation, integration and transparency as a methodological basis for the institutional design of sustainable development of indigenous peoples.

The Impact of Forced Seizure of the Collateral on the Charge Relationship

2026-06-18T11:18:08+03:00

The author examines the impact of forced seizure of property on the rights and obligations of the parties to a pledge (mortgage) agreement, particularly in cases of forced seizure for state and municipal needs, requisition, and confiscation of property. Also he studies other cases of forced seizure of pledged property to satisfy the interests of individuals. The author highlights a number of gaps in current Russian legislation. Specifically he concludes there is no unified private-law institution of forced seizure, and therefore the provisions of Article 235 of the Civil Code of the Russian Federation can only be perceived as a guide for determining the range of situations subject to forced seizure. Drawing on Russian judicial practice, the author identifies conflicts between provisions governing the sale of seized and pledged property. He concludes that, in the absence of clearing the pledged property of encumbrances, the property must be sold in accordance with the rules of pledge law, and not in accordance with public law. The article also provides a comparative legal and historical analysis of the regulation of methods for protecting the rights of the pledgee during the forced seizure of pledged property. The author substantiates the position that a public-law relationship arises between the owner (or other legal holder) and the person in whose favor the property is seized, which cannot be reduced to the relationship arising from a forced sale and purchase agreement. The author concludes the pledgee currently has an extremely limited legal status in the legal relationship involving the forced seizure of pledged property, is significantly vulnerable in determining the terms of such seizure, and is largely dependent on the decisions of the pledger, which affects the resolution of issues related to collateral surrogacy. The article also explores possible models for structuring the legal relationship between the pledgee and the person in whose favor the pledged property is seized, in terms of the emergence of direct and indirect legal relationships.

Technology of Deepfake: Transformation of Evidence Standards in Court Proceedings

2026-06-18T11:18:21+03:00

The authors examine changes in the institution of judicial evidence caused by the widespread use of generative artificial intelligence and deepfakes technologies, the use of that in judicial practice is considered a complex challenge for the modern legal system. Fake photos, videos, and audio materials can be used to falsify evidence, and verifying the authenticity of such evidence requires the involvement of digital forensics experts. The experts analyze file metadata, look for compression artifacts, inconsistencies in lighting, shadows, or unnatural movements of the eyes and facial muscles. The authors analyze why the classical elements (criteria) of the standard of proof — relativity, admissibility, and authenticity — are losing their value in today’s conditions, when any audio or video information can be completely generated by a neural network and is visually indistinguishable from the original. Three key shortcomings of the traditional standard of proof are discussed: relevance does not protect against synthetic forgery, admissibility does not guarantee the authenticity of evidence, and the property of evidence’s reliability is unattainable due to the lack of approved methods for detecting deepfakes. The need to shift from “proof of facts” to “proof of provenance” of evidence is substantiated. A verifiable chain of custody is proposed as a new element of the standard of proof, including mandatory metadata recording, cryptographic hashing of files, and documentation of all stages of storage and transfer of a digital object. In the absence of such a chain, it is proposed to introduce a presumption of evidence generation. Based on a comparison of international legal experience (USA, European Union, China) and Russian judicial practice, particular attention is paid to the inadmissibility of using entirely AI-generated materials as independent evidence in legal proceedings, as well as the admissibility of the analytical use of neural networks in forensic examinations. The article may be of scholar and practical purpose for judges, investigators, lawyers, forensic experts, and researchers in the field of digital technology integration in law enforcement and evidence law.

Models for Resolving Interlocal Conflicts in Private International Law

2026-06-18T11:18:32+03:00

The application of the law of a country with multiple legal systems is an important institution of the General Part of Private International Law (hereinafter PIL), which has been unfairly overlooked by judicial practice. For the purposes of PIL, the concept of a “state with multiple legal systems” should be interpreted broadly, encompassing internal conflicts of laws across space (interlocal), persons (interpersonal), and time (intertemporal). The provision enshrined in Article 1188 of the Civil Code of the Russian Federation is applicable to the resolution of all three types of conflicts. This article analyzes one type of internal conflicts — interlocal conflicts — arising in states that include administrative-territorial units with a certain legal autonomy in matters of regulating private law relations. Such conflicts are included within the subject matter of PIL, and PIL conflict rules, due to their general abstract nature, represent a valid legal and technical tool for selecting the applicable law in both international and interlocal conflicts. Several models for resolving interlocal conflicts have been developed in international acts, national legislation and judicial practice: 1) the direct reference model: a) simple; b) extended (complicated); 2) the indirect reference model: a) simple; b) extended (complicated); 3) the synergistic model: a) a subtype of the direct model; b) a subtype of the indirect model. The optimal solution appears to be the use of the synergistic subtype of direct reference, since it allows for the maximum possible balance to be achieved between practical expediency and respect for national legal specifics. This model does not suffer from excessive complexity, increases the certainty and predictability of a court decision, and takes into account the conflict party autonomy. In Russian legislation, the extended indirect model is formally legally enshrined, but the semantic interpretation of the statutory provision given by the Plenum of the Supreme Court of the Russian Federation transforms it into an extended direct model. Such practice of the law enforcement agency appears to be entirely adequate and justified. The study utilized methods of comparative law and comparative analysis, as well as historical and formal-logical methods.

Unilateral Extraterritorial Sanctions: Issues of Jurisdictional Justification in International Law

2026-06-18T11:18:37+03:00

The contemporary international legal system is undergoing serious transformation related to expanding practice of coercive measures applied by individual states beyond of national territory. The author analyzes legal foundations and limitations of modern approaches to justifying state competence in the sphere of restrictive measures. The evolution of terminological system from classical concepts of «countermeasures» and «retorsions» by the International Law Commission to modern politically motivated terms «sanctions», «restrictive measures», and «autonomous sanctions» is studied. Based on analysis of restrictive measures practice by various states, main types of extraterritorial measures are identified by subject composition, nature of impact, scope of objectives, and mechanism of action. Traditional principles of jurisdiction are examined: territoriality, nationality, and protective principle. Legal aspects of their application to extraterritorial measures are explored in detail, including extensive interpretation of territorial principle through «correspondent jurisdiction» and «effects doctrine» concepts, application of nationality principle to controlled companies and exported goods, unjustified extension of protective principle to foreign policy interests. Special attention is paid to legal analysis of secondary sanctions as the most problematic form of extraterritorial coercion. Through practical cases (Helms-Burton Act, BNP Paribas case, sanctions against Russia and Iran), key legal problems are analyzed: non-compliance with requirements of significant jurisdictional nexus, violation of proportionality principle, conflict with sovereign equality principle. The influence of geographic asymmetry in extraterritorial measures application on impossibility of customary international law norm formation is demonstrated. Systemic deficiencies of the «anti-avoidance» concept are revealed. The fundamental conflict between sovereignty principle and effectiveness of restrictive measures under institutional crisis of collective security system is analyzed. Directions for international legal regulation development are proposed, including strengthening multilateral mechanisms, improving judicial procedures, and creating procedural guarantees against abuse of coercive measures.

Anti-Money Laundering Regimes and Asset Recovery Measures against Transnational Organized Crime in the BRICS-ASEAN Context

2026-06-17T21:39:07+03:00

The author assesses the degree of efficacy of Anti-Money Laundering (AML) regimes and Asset Recovery (AR) measures within BRICS and ASEAN member states, primarily in their capacity to address illicit financial flows and transnational organized crime. The study employs a comparative cross-regional methodology involving legislative review, Financial Action Task Force (FATF) mutual evaluation reports, and case studies as a primary basis for the exploration. The author examines preventive mechanisms in AML and also reactive components in Asset Recovery practice and law; he also investigates emerging risks stemming from the increased use of cryptocurrencies as well as informal value transfer systems. The research illustrates a persistent compliance–effectiveness gap; while laws and regulations generally reflect international legal obligations, the enforcement capacity is relatively weak due to fragmented regulations, lack of cross-border cooperation, corruption, and lack of resources. The author studies involving Brazil’s Operation Car Wash and Singapore’s cryptocurrency seizures signal some potential for success; however, systemic limitations remain extensive. ASSET RECOVERY rates remain globally and regionally close to one percent of illicit proceeds. The assessment concludes that BRICS and ASEAN states must go beyond compliance if there is to be an improvement in enforcement. Entailing measures such as harmonized regulation of virtual assets and improved judicial and law enforcement capacity and more extensive agreement on cross-border cooperation will be crucial to close the enforcement gaps and address permanent increasingly sophisticated criminal networks.