В статье рассматриваются актуальные вопросы причин криминализации российского общества (уголовно-правовой и криминологический аспекты), влияние этой проблемы на изменение жизнедеятельности населения, приводится анализ и статистика совершённых преступлений на территории Российской Федерации с учётом зарегистрированных преступлений в период 2014 г. Показано соотношение принципов национального права в сфере регулирования естественных прав и свобод человека. Исследованы тенденции состояния преступности современного российского общества. Определены некоторые показатели преступности. Рассмотрены национальные детерминанты преступлений и выявлены последствия социально-экономических и политико-правовых преобразований в России. ; The article deals with current issues of the causes of criminalization of the Russian society (the criminal law and criminological aspects). The author particularly studies the impact of this problem on the change of life of the population. The material of the paper provides a comparative analysis and statistics of crimes committed in the territory of the Russian Federation with the reported crimes in the period of 2014. The ratio shows principles of national law in the regulation of natural rights and freedoms. The researcher discusses the question of tendencies of the state of crimes in the modern Russian society. The work provides an analysis of quantitative and qualitative indicators of crimes. The author examines the determinants of national crimes and highlighted the significant impact of socio-economic, political and legal reforms. Commitment of crimes are studied in connection with the wealth of criminals.
The article reveals formation peculiarities of ideas of individualism in the John Locke's philosophy of law. It was proved that the philosophical and legal thought of the Enlightenment had been greatly influenced by Locke's interpretation of the natural state of society, in which the scientist sees essential human rights and maybe for the first time refers to it the right of ownership, which has both bourgeois and individualist overtones. J. Locke, following the idea of the contracting origin of the state, opposed to T. Hobbes, emphasized individualist tendencies more than social ones; considering that an individual should have political, spiritual and economic independence and be a free subject of choice and action. Focusing on individualist aspect of the English philosopher's heritage, the attention is paid to his main philosophical and legal postulates: individual rights to life, freedom and ownership are fundamental by nature and indivisible from each other; liberty is the basis of all other rights; this liberty implies freedom from different relations with others, except of those in which the individual enters freely considering interest of his own; freedom from dependence against others makes us human; the freedom of each individual may be limited only by such rules and obligations which are necessary to provide the same freedom for others; equality does not equalize, but protects and stimulates the natural human differences; people are equal subjects in relation to economic, spiritual and political spheres and to their own destiny; a person has the right to satisfy freedom in the way he likes, and not to violate the laws of rights; in fact, the individual is the owner of his personality and abilities, and he owes nothing to society in this respect; only the individual himself can determine his own benefit; the right of ownership is an anthropological constant, and labor is the primary condition for meeting the needs; human society consists of market relations; the state is the result of a social arrangement to protect ownership of an individual through him and in the form of benefits, and hence keeping structured relations of exchange between individuals who are regarded as owners of themselves; noninvolvement of the state into private life and personal well-being of people. ; У статті робиться спроба роз-криття індивідуалізму у філо-софії права Джона Локка. Філо-софсько-правова думка доби Просвітництва перебувала під величезним впливом локківської інтерпретації природнього стану суспільства, в якому вчений роз-глядає основні права людини і, чи не вперше, відносить туди право власності, яке має як буржуазний, так і індивідуалістичний відті-нок. Дж. Локк, продовжуючи ідею договірного походження держави, на відмінну від Т. Гоббса, більше акцентував на індивідуалістичних тенденціях, аніж суспільних, вва-жаючи, що індивід повинен мати політичну, духовну та економічну самостійність і бути вільним суб'єктом вибору та дії. Зосереджуючись на індивідуаліс-тичному аспекті спадщини англій-ського філософа, звернено увагу на його основні філософсько-правові постулати: індивідуальні права на життя, свободу і власність є фундаментальними за своєю суттю та нероздільними одне від інших; свобода є основою всіх інших прав; ця свобода передбачає свободу від різних відносин з іншими, крім тих, в які індивід вступає добро-вільно з урахуванням власного інте-ресу; свобода від залежності щодо інших робить нас людьми; свобода кожного індивіда може бути обме-жена тільки такими правилами і обов'язками, які необхідні для того, щоб забезпечити таку ж свободу іншим; рівність не зрівнює, а обері-гає і стимулює природну несхожість людей; люди є рівноправними суб'єк-тами щодо економічної, духовної та політичної сфери і власної долі; людина має право задовольнити свободу тим способом, якими йому до вподоби, а не порушувати зако-нів справедливості; по суті, інди-від є власником своєї особистості і здібностей, і в цьому відношенні він нічим не зобов'язаний суспільству; лише сам індивід може визначити, в чому полягає його власне благо; право власності є антропологічною константою, а праця – це первинна умова задоволення потреб; людське суспільство складається з ринкових відносин; держава є результатом суспільної домовленості для захи-сту власності індивіда в його особі і у вигляді благ, і отже, збереження впорядкованих відносин обміну між індивідами, які розглядаються як власники самих себе; невтручання держави у приватне життя та осо-бисте процвітання людей.
The article is devoted preconditions adoption and content analysis of the first French Constitution of 1791.It was also considered the role of the Declaration of Human and Peoples Rights 1789 in determining the political and legal parameters of the Constitution, among which are the leading philosophical, social and legal ideas of thinkers XVII-XVIII centuries, especially Locke, Montesquieu and Rousseau.Was found the role of a prominent figure of the French Revolution Mounier, who came from the theory of natural law, the social contract and national suvernitet. In Declaration to the human rights he determined: liberty, property, security and resistance to violence. This made it possible to lay the foundation for the development of French constitutionalism as they related to the social compromise that included at the appropriate stage of social development.The paper also analyzes the structure and main provisions of the constitution of 1971 ‑ the first constitution of France. The form of government in France was proclaimed a constitutional monarchy. The Constitution consists of Introduction and seven chapters, each of which is divided into chapters and sections of chapters.It also made an analysis of the structure of the government, its individual organs. It is concluded that the constitution of France in 1791 was the first step in achieving effective social compromise in society, it was listed basic rights and freedoms defined polity, public authorities and their competence, etc.The Constitution was significantly different from the Declaration of the Human Rights, replacing revolutionary romanticism of this manifesto carefully and skillfully ordered legal articles that provided the best conditions for contemporary bourgeois rule. ; Розглянуто роль Декларації прав людини та громадянина 1789 р. у визначенні політико-правових параметрів конституції, серед яких простежуємо провідні філософські, соціальні та правові ідеї мислителів ХVII-XVIII ст., насамперед Локка, Монтеск'є та Русо. Виділено положення теорій природного права, суспільного договору і національного суверенітету. Проаналізовано структуру та основні положення конституції 1791 р. Зроблено висновок, що конституція Франції 1791 р. стала першим дієвим кроком у досягненні соціального компромісу в суспільстві, в ній були перелічені основні права і свободи громадян, визначено державний устрій, органи державної влади та їхню компетенцію і т.д.
Statement of problem. In Ukraine nowadays every year the family institution loses its meaning. There is a growing trend towards so-called "civil marriage", frequent divorce, and young people do not want to marry. You should also remember the wedding, ceremony, which is primarily a spiritual meaning, not just a contract. As a form of marriage in general it has lost its value and almost never used. We can not ignore and gay marriage, the debate over which unabated. There are many points of view, various studies and surveys on this. In many countries, such marriages are allowed, but multiple opponents argue that it is contrary to the very definition of family and marriage. So today there is a need to explore the genesis concepts of marriage and family. Recent research and publication analysis. The question of marriage and family relations was always interested researchers because the family and the family is the foundation of every human life. Recent research and public study on matrimonial customary law pre-Christian times in his writings pay attention Hrushevsky, Ivan Krypiakevych, I. Belyaev, M. ascend-Budanov, V. Serhiyevych, Shulgin, S. Yushkov, N. Pushkarev, N. Belyaev. The question of civil-legal regulation of property relations in Kievan Rus according to the norms of n Pravda was the subject of study of various scientists. These include, in particular, B. Grekov , P.Muzychenko, V. Rubanyka, W. Kulczycki, P. Zakharchenko, V. Serhiyevycha and others. In the nineteenth century the question of family relations, family and inheritance redistribution members of one family studied Pahman S., M. Kachanov, Barykov A., Mukhin, Alexander Leontiev. Paper objective. The article is a comprehensive analysis of the formation of marriage and family relations arising from the fact of belonging to a marriage and family in the Ukrainian lands in their development during X – XIX centuries. Paper main body. Analyzed the issue of marriage and family relations in the process of formation and development in Ukraine. History of the Ukrainian family law reaches ancient times, even before the formation of Kievan Rus as a state, let alone the adoption of Christianity. In ancient times in our history the Ukrainian lands major factor regulating social relations advocated custom. Personal property and non-property rights of spouses dependent on the shape and conditions of marriage. Matrimonial law Kievan Rus was a kind and unique because formed based on Byzantine law, pagan rituals, various folk customs and princely legislation. To simplify and facilitate the marriage in 1897 was issued a collection of religious and civil laws on divorce and judicial proceedings in matrimonial matters, where it was said that people of Orthodox religion can marry among themselves and with foreigners Orthodox and all other Christian denominations not asking for special permission from the authorities, but with all the marriage requirements. Conclusions of research. Examining the different forms of marriage in the Pagan era, one could argue that the echoes of ancient customs can be seen today in the marriage rites. The adoption of Christianity created favorable conditions for the rapid development of social, economic, political and spiritual relations, preparing the ground for organizing the legal system, both in general and in the field of marriage and family relations. Christianity, including Orthodox Church, had a great influence on the formation of new ethical norms of life which, to some extent found their reflection in the new legal system. Further evolution took place right in the direction of humanization. Thus, the Christian church has become a stabilizing factor in the socio-political system and legal development as Kievan Rus and modern Ukraine. The provisions of customary law XVII-XVIII reflected in the laws of the Russian Empire concerning marriage, conditions for its conclusion and termination, family rights and responsibilities and so on. These laws, some provisions of which began to operate from late XVII-XVIII century. In the nineteenth century. already fully regulate marriage and family relationships population, including Ukraine as part of the Russian Empire, and acted to the October revolution in 1917 however they were not straightforward and often contradicted each other. On the one hand provide extensive freedom and independence of women, on the other - completely denied their rights. Full union of church and state, which was one of the important principles of society at the time, was at the heart of marriage laws: the laws given not only features the marriage of some segments of the population, but were certain provisions of the laws concerning marriage of people of different Christian denominations and marriage do not Christians. The state determined the only legitimate church marriage, the main proof of marriage was a record in the parish (metric) book. As for the rights and responsibilities of spouses, they are completely controlled by the church, the state and meet the requirements of the then social, though not entirely satisfy the desire of family members. ; Проанализированы вопросы становления брачно-семейных отношений, которые возникают по факту брака и принадлежности к семье, на украинских землях в процессе их развития в Х – ХІХ веках ; Проаналізовано питання становлення шлюбно-сімейних відносин, що виникають з факту шлюбу та приналежності до сім'ї, на українських землях в процесі їх розвитку впродовж Х – ХІХ ст.
Statement of problem. In Ukraine nowadays every year the family institution loses its meaning. There is a growing trend towards so-called "civil marriage", frequent divorce, and young people do not want to marry. You should also remember the wedding, ceremony, which is primarily a spiritual meaning, not just a contract. As a form of marriage in general it has lost its value and almost never used. We can not ignore and gay marriage, the debate over which unabated. There are many points of view, various studies and surveys on this. In many countries, such marriages are allowed, but multiple opponents argue that it is contrary to the very definition of family and marriage. So today there is a need to explore the genesis concepts of marriage and family. Recent research and publication analysis. The question of marriage and family relations was always interested researchers because the family and the family is the foundation of every human life. Recent research and public study on matrimonial customary law pre-Christian times in his writings pay attention Hrushevsky, Ivan Krypiakevych, I. Belyaev, M. ascend-Budanov, V. Serhiyevych, Shulgin, S. Yushkov, N. Pushkarev, N. Belyaev. The question of civil-legal regulation of property relations in Kievan Rus according to the norms of n Pravda was the subject of study of various scientists. These include, in particular, B. Grekov , P.Muzychenko, V. Rubanyka, W. Kulczycki, P. Zakharchenko, V. Serhiyevycha and others. In the nineteenth century the question of family relations, family and inheritance redistribution members of one family studied Pahman S., M. Kachanov, Barykov A., Mukhin, Alexander Leontiev. Paper objective. The article is a comprehensive analysis of the formation of marriage and family relations arising from the fact of belonging to a marriage and family in the Ukrainian lands in their development during X – XIX centuries. Paper main body. Analyzed the issue of marriage and family relations in the process of formation and development in Ukraine. History of the Ukrainian family law reaches ancient times, even before the formation of Kievan Rus as a state, let alone the adoption of Christianity. In ancient times in our history the Ukrainian lands major factor regulating social relations advocated custom. Personal property and non-property rights of spouses dependent on the shape and conditions of marriage. Matrimonial law Kievan Rus was a kind and unique because formed based on Byzantine law, pagan rituals, various folk customs and princely legislation. To simplify and facilitate the marriage in 1897 was issued a collection of religious and civil laws on divorce and judicial proceedings in matrimonial matters, where it was said that people of Orthodox religion can marry among themselves and with foreigners Orthodox and all other Christian denominations not asking for special permission from the authorities, but with all the marriage requirements. Conclusions of research. Examining the different forms of marriage in the Pagan era, one could argue that the echoes of ancient customs can be seen today in the marriage rites. The adoption of Christianity created favorable conditions for the rapid development of social, economic, political and spiritual relations, preparing the ground for organizing the legal system, both in general and in the field of marriage and family relations. Christianity, including Orthodox Church, had a great influence on the formation of new ethical norms of life which, to some extent found their reflection in the new legal system. Further evolution took place right in the direction of humanization. Thus, the Christian church has become a stabilizing factor in the socio-political system and legal development as Kievan Rus and modern Ukraine. The provisions of customary law XVII-XVIII reflected in the laws of the Russian Empire concerning marriage, conditions for its conclusion and termination, family rights and responsibilities and so on. These laws, some provisions of which began to operate from late XVII-XVIII century. In the nineteenth century. already fully regulate marriage and family relationships population, including Ukraine as part of the Russian Empire, and acted to the October revolution in 1917 however they were not straightforward and often contradicted each other. On the one hand provide extensive freedom and independence of women, on the other - completely denied their rights. Full union of church and state, which was one of the important principles of society at the time, was at the heart of marriage laws: the laws given not only features the marriage of some segments of the population, but were certain provisions of the laws concerning marriage of people of different Christian denominations and marriage do not Christians. The state determined the only legitimate church marriage, the main proof of marriage was a record in the parish (metric) book. As for the rights and responsibilities of spouses, they are completely controlled by the church, the state and meet the requirements of the then social, though not entirely satisfy the desire of family members. ; Проанализированы вопросы становления брачно-семейных отношений, которые возникают по факту брака и принадлежности к семье, на украинских землях в процессе их развития в Х – ХІХ веках ; Проаналізовано питання становлення шлюбно-сімейних відносин, що виникають з факту шлюбу та приналежності до сім'ї, на українських землях в процесі їх розвитку впродовж Х – ХІХ ст.
Statement of problem. In Ukraine nowadays every year the family institution loses its meaning. There is a growing trend towards so-called "civil marriage", frequent divorce, and young people do not want to marry. You should also remember the wedding, ceremony, which is primarily a spiritual meaning, not just a contract. As a form of marriage in general it has lost its value and almost never used. We can not ignore and gay marriage, the debate over which unabated. There are many points of view, various studies and surveys on this. In many countries, such marriages are allowed, but multiple opponents argue that it is contrary to the very definition of family and marriage. So today there is a need to explore the genesis concepts of marriage and family. Recent research and publication analysis. The question of marriage and family relations was always interested researchers because the family and the family is the foundation of every human life. Recent research and public study on matrimonial customary law pre-Christian times in his writings pay attention Hrushevsky, Ivan Krypiakevych, I. Belyaev, M. ascend-Budanov, V. Serhiyevych, Shulgin, S. Yushkov, N. Pushkarev, N. Belyaev. The question of civil-legal regulation of property relations in Kievan Rus according to the norms of n Pravda was the subject of study of various scientists. These include, in particular, B. Grekov , P.Muzychenko, V. Rubanyka, W. Kulczycki, P. Zakharchenko, V. Serhiyevycha and others. In the nineteenth century the question of family relations, family and inheritance redistribution members of one family studied Pahman S., M. Kachanov, Barykov A., Mukhin, Alexander Leontiev. Paper objective. The article is a comprehensive analysis of the formation of marriage and family relations arising from the fact of belonging to a marriage and family in the Ukrainian lands in their development during X – XIX centuries. Paper main body. Analyzed the issue of marriage and family relations in the process of formation and development in Ukraine. History of the Ukrainian family law reaches ancient times, even before the formation of Kievan Rus as a state, let alone the adoption of Christianity. In ancient times in our history the Ukrainian lands major factor regulating social relations advocated custom. Personal property and non-property rights of spouses dependent on the shape and conditions of marriage. Matrimonial law Kievan Rus was a kind and unique because formed based on Byzantine law, pagan rituals, various folk customs and princely legislation. To simplify and facilitate the marriage in 1897 was issued a collection of religious and civil laws on divorce and judicial proceedings in matrimonial matters, where it was said that people of Orthodox religion can marry among themselves and with foreigners Orthodox and all other Christian denominations not asking for special permission from the authorities, but with all the marriage requirements. Conclusions of research. Examining the different forms of marriage in the Pagan era, one could argue that the echoes of ancient customs can be seen today in the marriage rites. The adoption of Christianity created favorable conditions for the rapid development of social, economic, political and spiritual relations, preparing the ground for organizing the legal system, both in general and in the field of marriage and family relations. Christianity, including Orthodox Church, had a great influence on the formation of new ethical norms of life which, to some extent found their reflection in the new legal system. Further evolution took place right in the direction of humanization. Thus, the Christian church has become a stabilizing factor in the socio-political system and legal development as Kievan Rus and modern Ukraine. The provisions of customary law XVII-XVIII reflected in the laws of the Russian Empire concerning marriage, conditions for its conclusion and termination, family rights and responsibilities and so on. These laws, some provisions of which began to operate from late XVII-XVIII century. In the nineteenth century. already fully regulate marriage and family relationships population, including Ukraine as part of the Russian Empire, and acted to the October revolution in 1917 however they were not straightforward and often contradicted each other. On the one hand provide extensive freedom and independence of women, on the other - completely denied their rights. Full union of church and state, which was one of the important principles of society at the time, was at the heart of marriage laws: the laws given not only features the marriage of some segments of the population, but were certain provisions of the laws concerning marriage of people of different Christian denominations and marriage do not Christians. The state determined the only legitimate church marriage, the main proof of marriage was a record in the parish (metric) book. As for the rights and responsibilities of spouses, they are completely controlled by the church, the state and meet the requirements of the then social, though not entirely satisfy the desire of family members. ; Проанализированы вопросы становления брачно-семейных отношений, которые возникают по факту брака и принадлежности к семье, на украинских землях в процессе их развития в Х – ХІХ веках ; Проаналізовано питання становлення шлюбно-сімейних відносин, що виникають з факту шлюбу та приналежності до сім'ї, на українських землях в процесі їх розвитку впродовж Х – ХІХ ст.
У статті аналізується сутність поняття «правова культура», поданого в різних філософських, правових, соціологічних, політологічних теоріях, розглянуті основні методологічні підходи до аналізу правової культури. Особливу увагу приділено розгляду правової культури як системи правових цінностей. Аналізується найважливіша правова цінність закон як основа правопорядку в суспільстві. В статье анализируется сущность понятия «правовая культура», представленного в различных философских, правовых, социологических, политологических теориях, рассмотрены основные методологические подходы к анализу правовой культуры. Особое внимание уделено рассмотрению правовой культуры как системы правовых ценностей. Анализируется важнейшая правовая ценность закон как основа правопорядка в обществе. ; The nature of notion «state» presented in a variety of philosophical, legal, sociological, political science theories is analyzed, the basic methodological approaches to the analysis of the legal culture are considered in the article. The special attention is paid to the legal culture as a system of legal values. The most important legal value, the law, as the basis for public order in the society is analyzed. The notion of legal culture is multifaceted and multidimensional. Therefore, a variety of theoretical and methodological approaches is used for its philosophical and legal analysis. Among them there are subjective, activity, anthropological, technological, qualitative, sociological approach and others. We are unanimous with those scholars who prefer axiological approach in its understanding. This approach, which is the most common among scientists, is able to combine the variety of its qualities around the notion of value, since these values are the core of culture in general, and the core of legal culture in particular. From the point of view of this approach, the culture is the objectification of value and worldview ideas that reflect the inner world of human subjectivity. Therefore, the authentic notion axiosphere can be applied to the culture as well. That means that the culture primarily serves as value the system relevant for the individual and society in the whole. It is regarded as a set of values created by mankind during its history. Taking all of this in account, legal culture is a system of legal values, that are developing, corresponding to the level of social progress, reached by the humanity, reflects in the legal form the important social values that affect the legal status and the way of life of the individual and society. Such conception of the legal culture is reflected in the scientific works of many scientists (S. S. Alekseev, V. P. Salnikov, R. K. Rusinov, A. P. Semitko and others). Legal values are based on the public order. They act as the perfect justification of the legal norm; they are the purpose of law and its institutions. Legal values are varied. The most important value of legal culture is the law. It is the legal basis of public order. The nature of the law is revealed through its philosophical and legal understanding as the source of legal regulation of the highest form. The implementation of any state function is not possible without the law. It regulates the most important social relationships and people's behavior in law. The goals and objectives are declared in it, means and solutions are defined, and the expected result to be achieved is predicted. The law is the only form of law, in which social function of the individual behavior can be performed, as it clearly states the conditions, procedures, manner and consequences of his actions. Only the law does not depend on personal desires or representations of individual and is binding. It contains primary rules, basic positions on major issues of public life. The law must realize the desire of every individual to freedom, justice, and equality so that either the public interest in general or particular interests of others were not affected. Legal establishing of rules is not an end in itself, but it is carried out for justice, human rights. An important condition for the rule of law in society is improving the quality of law, particularly the inherent features as an effective regulator of social relations. Unsatisfactory and inefficient law is the law passed without the foundations of natural law, without adequate study of the nature and the structure of social needs, with which it was brought to life, without specific legal awareness and legal culture of persons it was created for. It can be argued that the quality of law is determined, inter alia, by legal compliance to needs of social development; modern development, publication and adaptation of the new and refusal from the old legal norm; the correct definition of the scope and extent of regulation; consistent implementation and overall mobile systematization of legislation, overcoming of contradictions in it; following law in order of adequately expressing in it the will and interests of the people. The respect to the law has not become the dominant feature of the mass legal culture for the Ukrainian citizens, the factor that contributes to the stability and order of society. The presence of a significant number of the Ukrainian citizens willing to commit unlawful acts is an expression of the crisis of legal culture that affects the state of law and order in the society.
Citizenship defines the U.S. political experiment, but the modern legal category that it now names is a relatively recent invention. There was no Constitutional definition of citizenship until the ratification of the Fourteenth Amendment in 1868, almost a century after the Declaration of Independence. Civic Longing looks at the fascinating prehistory of U.S. citizenship in the years between the Revolution and the Civil War, when the cultural and juridical meaning of citizenship--as much as its scope--was still up for grabs. Carrie Hyde recovers the numerous cultural forms through which the meaning of citizenship was provisionally made and remade in the early United States. Civic Longing offers the first historically grounded account of the formative political power of the imaginative traditions that shaped early debates about citizenship. In the absence of a centralized legal definition of citizenship, Hyde shows, politicians and writers regularly turned to a number of highly speculative traditions--political philosophy, Christian theology, natural law, fiction, and didactic literature--to authorize visions of what citizenship was or ought to be. These speculative traditions sustained an idealized image of citizenship by imagining it from its outer limits, from the point of view of its "negative civic exemplars"--Expatriates, slaves, traitors, and alienated subjects. By recovering the strange, idiosyncratic meanings of citizenship in the early United States, Hyde provides a powerful critique of originalism, and challenges anachronistic assumptions that read the definition of citizenship backward from its consolidation in the mid-nineteenth century as jus soli or birthright citizenship.--
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What is the measure of ethics in the employ ment relation? The ethical obligation of the corporate em ployers of consequence—those whose activities affect interstate commerce, thus subjecting them to federal law—is equated with their legal obligation. The legal obligation is (1) to rec ognize the rights of their employees to organize and to bargain collectively, (2) to honor the collective agreement produced by such bargaining. The resulting reapportionment of bargaining power between employer and employees provides the means for achieving continuing reconciliation of the conflicting inter ests involved. Freedom of contract, a cornerstone of the free society, is thus made viable in the employment relation. The ends it produces are ethical, as between the parties, by the most meaningful test available in a democratic context: they have been reasoned, argued, bargained out. In this process, the constantly evolving consensus of the community is brought to bear upon the collective agreement reached and upon the en suing judicial interpretation of that agreement. The legal and ethical focus of the free society, in the employment relation as elsewhere, is upon means rather than ends, upon a process for catalyzing constantly changing and maturing social compro mises.
The author examines the influence of public policy on the evolution of the principle of free will in law in the interdisciplinary discourse of political science and law and in the context of a new scientific field – legal political science. The objective conditionality of the emergence and development of public policy in democratic countries in crisis situations and on the basis of a developed civil society, the rule of law, the protection of human rights has been studied. The essential features of public policy and the multiplicity of its national models are characterized. The relationship between public policy and the tendency to restrict freedom of will in law in the context of building a welfare state is revealed. It is stated that Ukraine is at the initial stage of understanding and formation of public policy.The conclusions identify the role of public policy on law as a tool that combines the state, regional, local, corporate governance and non-hierarchical institutions of the «third sector» of civil society in public administration in order to reconcile private interests with public. The following are proposed for research: legal ways of reconciling the principles of freedom of will and the rule of law on the basis of the principle of justice, which in binding law provides for the principle of equivalent contract. ; Авторка досліджує вплив фактора публічної політики на еволюцію принципу свободи волі в праві в міждисциплінарному дискурсі політології та права й у контексті нового наукового напряму – правової політології. Досліджено об'єктивну обумов- леність виникнення та розвитку публічної політики в демократичних країнах у кризових ситуаціях та на основі розвинутого громадянського суспільства, верховенства права, захисту прав людини. Охарактеризовано сутнісні ознаки публічної політики й множинність її націо- нальних моделей. Розкрито взаємозв'язок публічної політики з тенденцією до обмеження свободи волі в праві в контексті побудови соціальної держави. Констатується перебування України на початковому етапі осмислення та формування публічної політики.У висновках визначена роль фактора публічної політики щодо права як інструмента, що поєднує в публічному управлінні державу, регіональні, місцеві, корпоративні управлін- ські апарати та неієрархічні інститути «третього сектору» громадянського суспільства з метою взаємоузгодження приватних інтересів із суспільними. Пропонуються для дослід- ження: правові способи взаємоузгодження принципів свободи волі й верховенства права на основі принципу справедливості, який у зобов'язальному праві передбачає забезпечення принципу еквівалентного договору.
Philosophical and ethical controversies of contractualism are analyzed in the article. Revitalization of modern ethical discourse based on social agreement connected with J. Rawls whose "theory of justice" is interpreted in the light of philosophical and legal legitimization of sociodemocratic practices of "a state of general prosperity". Criticism of this theory presented in the works of R. Nozick and R. Dworkin is highlighted. There the first one rejects morality of state redistribution of "justly" acquired property, the second considers moral bases of socio-regulated governed influence based on "natural law" argumentation. The analysis of discrepancies between the approaches of J. Rawls and R. Dworkin has demonstrated the difficulties of neo-liberal attempts to prove moral bases of a modern state: problem statement in the individualistic way does not consider dynamic character of human socialization and neglects an issue regarding a moral status of marginalized populations. Criticism of neo-liberal controversies of contractualism performed by J. Habermas, is analyzed. Communicative approach to dichotomy withdrawal of liberal freedom ("rights of the new") and ideas of public autonomy ("rights of the old") is revealed. The study concludes that Habermas's "involvement of the Other" is to meet all practical challenges of the modern society, it evokes a consideration of the main approach of moral bases definition of a legal, democratic, and social state. Ethical discourse content is proved to be an embodiment of a process of self-awareness created by civil society that is a special form of existence and development of social subjectivity ; Politologijos katedra ; Vytauto Didžiojo universitetas
Full TextThe first law enacted in Canada to protect existing Aboriginal rights was section 35 of the Constitution Act, 1982.2 The first law in Canada to recognize the rights of non-human animals as anything other than property has yet to be enacted. The first Supreme Court of Canada (hereafter referred to as the Court) case to interpret section 35 was R. v. Sparrow.3 The 1990 case confirmed an Aboriginal right of the Musqueam peoples of British Columbia to fish for food, social and ceremonial purposes. Since this precedent-setting case, many similar claims have been brought before the courts by way of the fluctuating legal space created by s.35. Many of these cases have been about establishing rights to fish4, hunt5, and trap non-human animals (hereafter referred to as animals). The Court has developed, and continues to develop tests to determine the existence and scope of Aboriginal rights. These tests primarily embody cultural, political and, to a surprisingly lesser degree, legal forces. One of the principal problems with these tests is that they privilege, through the western philosophical lens, the interests of humans. Animals are, at best, the resources over which ownership is being contested. The Euro-centric legal conceptualization of animals as 'resources' over which ownership can be exerted is problematic for at least two reasons. First, the relegation of animals solely to a utilitarian role is antithetical to Indigenous-animal relationships and therefore demonstrates one of the fundamental ways the Canadian legal system is ill equipped to give adequate consideration to Indigenous law. Second, failure to consider animals' inherent value and agency in this context reproduces the human-animal and culture-nature binaries that are at the root of many of western Euro-centric society's inequities. This paper argues that Aboriginal peoples' relationships with animals are a necessary, integral and distinctive part of their cultures6 and, therefore, these relationships and the actors within them are entitled to the aegis of s.35. Through the legal protection of these relationships, animals will gain significant protection as a corollary benefit. If the Court were to protect the cultural relationships between animals and Aboriginal groups, a precondition would be acceptance of Indigenous legal systems. Thus, this paper gives a brief answer to the question, what are Indigenous legal systems and why are animals integral to them? The Anishinabe (also known Ojibwe or Chippewa) are Indigenous peoples who have historically lived in the Great Lakes region. The Bruce Peninsula on Lake Huron is home to the Cape Croker Indian Reserve, where the Chippewas of Nawash First Nation live. The people of this First Nation identify as Anishinabe. The Anishinabek case of Nanabush v. Deer is a law among these people and is used throughout the paper as an example of Indigenous-animal relationships. Making the significant assumption that s.35 has the capacity to recognize Indigenous law, the subsequent section of the paper asks why we should protect these relationships and how that protection should be achieved. Finally, the paper concludes that both the ability of s.35 to recognize Indigenous-animal relationships, and the judicial and political will to grant such recognition, are unlikely. Indigenous-animal relationships are integral to the distinctive culture of the Anishinabek, however the courts would be hesitant to allow such an uncertain and potentially far-reaching right. This is not surprising given that such a claim by both Indigenous and animal groups would challenge the foundations upon which the Canadian legal system is based. There are many sensitive issues inherent in this topic. It should be noted the author is not of Indigenous ancestry, but is making every effort to learn about and respect the Indigenous legal systems discussed. While this paper focuses on a number of Anishinabek laws; it is neither a complete analysis of these practices, nor one that can be transferred, without adaptation, to other peoples. Finally, Indigenous peoples and animal rights and Indigenous law scholars, such as Tom Regan and Mary Ellen Turpel-Lafond, respectively, may insist on an abolitionist approach to animal 'use' or reject the legitimacy of s.35 itself.7 These perspectives are worthy and necessary. This paper positions itself amongst these and other sources in order to reflect upon the timely and important issue of the legal status of Indigenous-animal relationships. I:WHAT ARE INDIGENOUS LEGAL SYSTEMS? The Law Commission of Canada defines a legal tradition as "a set of deeply rooted, historically conditioned attitudes about the nature of law, the role of law in the society and the polity, the proper organization and operation of a legal system, and the way law is or should be made, applied, studied, perfected and taught."8 Indigenous legal traditions fit this description. They are living systems of beliefs and practices, and have been recognized as such by the courts.9 Indigenous practices developed into systems of law that have guided communities in their governance, and in their relationships amongst their own and other cultures and with the Earth.10 These laws have developed through stories, historical events that may be viewed as 'cases,' and other lived experiences. Indigenous laws are generally non-prescriptive, non-adversarial and non-punitive and aim to promote respect and consensus, as well as close connection with the land, the Creator, and the community. Indigenous laws are a means through which vital knowledge of social order within the community is transmitted, revived and retained. After European 'settlement' the influence of Indigenous laws waned. This was due in part to the state's policies of assimilation, relocation and enfranchisement. 11 Despite these assaults, Indigenous legal systems have persevered; they continue to provide guidance to many communities, and are being revived and re-learned in others. For example, the Nisga'a's legal code, Ayuuk, guides their communities and strongly informs legislation enacted under the Nisga'a Final Agreement, the first modern treaty in British Columbia.12 The land and jurisdiction claims of the Wet'suwet'en and Gitxsan Nations ultimately resulted in the Court's decision in Delgamuukw,13 a landmark case that established the existence of Aboriginal title. The (overturned) BC Supreme Court's statement in Delgamuukw14 reveals two of the many challenges in demonstrating the validity of Indigenous laws: "what the Gitxsan and Wet'suwet'en witnesses[es] describe as law is really a most uncertain and highly flexible set of customs which are frequently not followed by the Indians [sic] themselves." The first challenge is that many laws are not in full practice, and therefore not as visible as they could be and once were. What the courts fail to acknowledge, however, is that the ongoing colonial project has served to stifle, extinguish and alter these laws. The second challenge is that the kind of law held and practiced by Indigenous peoples is quite foreign to most non-Indigenous people. Many Indigenous laws have animals as central figures. In Anishinabek traditional law, often the animals are the lawmakers15: they develop the legal principles and have agency as law givers. For instance, the Anishinabek case Nanabush v. Deer, Wolf , as outlined by Burrows, is imbued with legal principles, lessons on conduct and community governance, as well as 'offenses' and penalties. It is not a case that was adjudicated by an appointed judge in a courtroom, but rather one that has developed over time as a result of peoples' relationships with the Earth and its inhabitants. An abbreviated summary of the case hints at these legal lessons: Nanabush plays a trick on a deer and deliberately puts the deer in a vulnerable position. In that moment of vulnerability, Nanabush kills the deer and then roasts its body for dinner. While he is sleeping and waiting for the deer to be cooked, the Wolf people come by and take the deer. Nanabush wakes up hungry, and out of desperation transforms into a snake and eats the brains out of the deer head. Once full, he is stuck inside the head and transforms back into his original shape, but with the deer head still stuck on. He is then chased and nearly killed by hunters who mistake him for a real deer. This case is set within the legal context of the Anishinabek's treaty with deer. In signing the treaty, the people were reminded to respect beings in life and death and that gifts come when beings respect each other in interrelationships.16 Nanabush violated the rights of the deer and his peoples' treaty with the deer. He violated the laws by taking things through trickery, and by causing harm to those he owed respect. Because his actions were not in accordance with Anishinabek legal principles, he was punished: Nanabush lost the thing he was so desperately searching for, and he ended up nearly being killed. This case establishes two lessons. The first is that, like statutory and common law, with which Canadians are familiar, Indigenous law does not exist in isolation. Principles are devised based on multiple teachings, pre- vious rules and the application of these rules to facts. That there are myriad sources of Indigenous law suggests that the learning of Indigenous law would require substantial effort on the part of Canadian law-makers.17 The second is that animals hold an important place in Indigenous law, and those relationships with animals – and the whole 'natural' world – strongly inform the way they relate to the Earth. II: CAN CANADIAN LAW ACCEPT INDIGENOUS LEGAL SYSTEMS? If there were a right recognized under s.35 concerning the Indigenous-animal relationship, what would it look like? Courts develop legal tests to which the facts of each case are applied, theoretically creating a degree of predictability as to how a matter will be judged. Introduced in Sparrow, and more fully developed in Van der Peet, a 'test' for how to assess a valid Aboriginal right has been set out by the Court. Summarized, the test is: "in order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right."18 There are ten, differently weighted factors that a court will consider in making this assessment. The right being 'tested' in this discussion is the one exemplified in Nanabush v. Deer: the ability of Indigenous peoples to recognize and practice their laws, which govern relationships, including death, with deer and other animals. The courts have agreed that a generous, large and liberal construction should be given to Indigenous rights in order to give full effect to the constitutional recognition of the distinctiveness of Aboriginal culture. Still, it is the courts that hold the power to define rights as they conceive them best aligning with Canadian society19; this is one way that the Canadian state reproduces its systems of power over Indigenous peoples.20 The application of the Aboriginal right exemplified in Nanbush v. Deer to the Sparrow and Van der Peet tests would likely conclude that the Anishinabek do have an integral and distinctive relationship with animals. However, due to the significant discretion of the Court on a number of very subjective and politically sensitive factors, it is uncertain that the Nanabush v. Deer case would 'pass' Van der Peet's required ten factors.21 This is indicative of the structural restraints that s.35 imposes. 22 The questions it asks impair its ability to capture and respect the interrelationships inherent in Indigenous peoples' interactions with animals. For example, the Court will characterize hunting or fishing as solely subsistence, perhaps with a cultural element. Shin Imai contends these activities mean much more: "To many…subsistence is a means of reaffirming Aboriginal identity by passing on traditional knowledge to future generations. Subsistence in this sense moves beyond mere economics, encompassing the cultural, social and spiritual aspects for the communities."23 Scholar Kent McNeil concludes that: "regardless of the strengths of legal arguments in favour of Indigenous peoples, there are limits to how far the courts […] are willing to go to correct the injustices caused by colonialism and dispossession."24 It is often not the legal principles that determine outcomes, but rather the extent to which Indigenous rights can be reconciled with the history of settlement without disturbing the current economic and political structure of the dominant culture. III:WHY PROTECT THE ANIMAL-INDIGENOUS RELATIONSHIP? Legally protecting animal-Indigenous relationships offers symbiotic, mutually respectful benefits for animals and for the scope of Aboriginal rights that can be practiced. For instance, a protected relationship would have indirect benefits for animals' habitat and right to life: it would necessitate protecting the means necessary, such as governance of the land, for realization of the right. This could include greater conservation measures, more contiguous habitat, enforcement of endangered species laws, and, ideally, a greater awareness and appreciation by humans of animals and their needs. Critical studies scholars have developed the argument that minority groups should not be subject to culturally biased laws of the mainstream polity.24 Law professor Maneesha Deckha points out that animals, despite the central role they play in a lot of 'cultural defences,' have been excluded from our ethical consideration. Certainly, the role of animals has been absent in judicial consideration of Aboriginal rights.26 Including animals, Deckha argues, allows for a complete analysis of these cultural issues and avoids many of the anthropocentric attitudes inherent in Euro-centric legal traditions. In Jack and Charlie27 two Coast Salish men were charged with hunting deer out of season. They argued that they needed to kill a deer in order to have raw meat for an Aboriginal religious ceremony. The Court found that killing the deer was not part of the ceremony and that there was insufficient evidence to establish that raw meat was required. This is a case where a more nuanced consideration of the laws and relationships with animals would have resulted in a more just application of the (Canadian) law and prevented the reproduction of imperialist attitudes. A criticism that could be lodged against practicing these relationships is that they conflict with the liberty and life interests of animals.28 Theoretically, if Indigenous laws are given the legal and political room to fully operate, a balance between the liberty of animals and the cultural and legal rights of Indigenous peoples can be struck.29 Indeed, Indigenous peoples' cultural and legal concern for Earth is at its most rudimentary a concern for the land, which is at the heart of the challenge to the Canadian colonial system. If a negotiated treaty was reached, or anti-cruelty and conservation laws were assured in the Indigenous peoples' self government system, then Canadian anti-cruelty30 and conservation laws,31 the effectiveness of which are already questionable, could be displaced in recognition of Indigenous governance.32 Indigenous peoples in Canada were – and are, subject to imposed limitations – close to the environment in ways that can seem foreign to non-Indigenous people.33 For example, some origin stories and oral histories explain how boundaries between humans and animals are at times absent: Animal-human beings like raven, coyote and rabbit created them [humans] and other beings. People …acted with respect toward many animals in expectation of reciprocity; or expressed kinship or alliance with them in narratives, songs, poems, parables, performances, rituals, and material objects. 34 Furthering or reviving these relationships can advance the understanding of both Indigenous legal systems and animal rights theory. Some animal rights theorists struggle with how to explain the cultural construction of species difference: Indigenous relationships with animals are long standing, lived examples of a different cultural conception of how to relate to animals and also of an arguably healthy, minimally problematic way to approach the debate concerning the species divide.35 A key tenet of animal-Indigenous relationships is respect. Shepard Krech posits that Indigenous peoples are motivated to obtain the necessary resources and goals in 'proper' ways: many believe that animals return to the Earth to be killed, provided that hunters demonstrate proper respect.36 This demonstrates a spiritual connection, but there is also a concrete connection between Indigenous peoples and animals. In providing themselves with food and security, they 'manage' what Canadian law calls 'resources.'37 Because of the physical nature of these activities, and their practical similarity with modern 'resource management,' offering this as 'proof' of physical connection with animals and their habitat may be more successful than 'proving' a spiritual relationship. Finally, there are health reasons that make the Indigenous-animal relationship is important. Many cultures have come to depend on the nutrients they derive from particular hunted or fished animals. For example, nutrition and physical activity transitions related to hunting cycles have had negative impacts on individual and community health.38 This shows the multidimensionality of hunting, the significance of health, and, by extension, the need for animal 'resources' to be protected. IV: HOW SHOULD WE PROTECT THESE ABORIGINAL RIGHTS? If the Anishinabek and the deer 'win' the constitutional legal test ('against' the state) and establish a right to protect their relationships with animals, what, other than common law remedies,39 would follow? Below are ideas for legal measures that could be taken from the human or the animal perspective, or both, where benefits accrue to both parties. If animals had greater agency and legal status, their needs as species and as individuals could have a meaningful place in Canadian common and statutory law. In Nanabush v. Deer, this would mean that the deer would be given representation and that legal tests would need to be developed to determine the animals' rights and interests. Currently the courts support the view that animals can be treated under the law as any other inanimate item of property. Such a legal stance is inconsistent with a rational, common-sense view of animals,40 and certainly with Anishinabek legal principles discussed herein.41 There are ongoing theoretical debates that inform the practical questions of how animal equality would be achieved: none of these in isolation offers a complete solution, but combined they contribute to the long term goal. Barsh and James Sákéj Youngblood Henderson advocate an adoption of the reasoning in the Australian case Mabo v. Queensland,42 where whole Aboriginal legal systems were imported intact into the common law. Some principles that Canada should be following can also be drawn from international treaties that Canada has or should have signed on to.43 Another way to seek protection from the human perspective is through the freedom of religion and conscience section of the Charter. Professor John Borrows constructs a full argument for this, and cites its challenges, in Living Law on a Living Earth: Aboriginal Religion, Law and the Constitution.44 The strongest, but perhaps most legally improbable, way to protect the animal- Indigenous relationship is for Canada to recognize a third, Indigenous order of government (in addition to provincial and federal), where all three orders are equal and inform one another's laws. This way, Indigenous laws would have the legal space to fully function and be revived. Endowing Indigenous peoples with the right to govern their relationships would require a great acquiescence of power by governments and a commitment to the establishment and maintenance of healthy self-government in Indigenous communities. Louise Mandell offers some reasons why Canada should treat Aboriginal people in new ways, at least one of which is salient to the third order of government argument: To mend the [E]arth, which must be done, governments must reassess the information which the dominant culture has dismissed. Some of that valuable information is located in the oral histories of Aboriginal Peoples. This knowledge will become incorporated into decisions affecting the [E]arth's landscape when Aboriginal Peoples are equal partners in decisions affecting their territories.45 V: CONCLUSION A legal system that does not have to justify its existence or defend its worth is less vulnerable to challenges.46 While it can be concluded that s.35 has offered some legal space for Indigenous laws and practices, it is too deeply couched in Euro-centric legal traditions and the anthropocentric cultural assumptions that they carry. The most effective strategy for advancing Indigenous laws and culture, that would also endow many animals with greater agency, and relax the culture-nature, human-animal binaries, is the formal recognition of a third order of government. Lisa Chartrand explains that recognition of legal pluralism would be a mere affirmation of legal systems that exist, but which are stifled: "…this country is a multijuridical state, where the distinct laws and rules of three systems come together within the geographic boundaries of one political territory." 47 Revitalizing Indigenous legal systems is and will be a challenging undertaking. Indigenous communities must reclaim, define and understand their own traditions: "The loss of culture and traditions caused by the historic treatment of Aboriginal communities makes this a formidable challenge for some communities. Equally significant is the challenge for the Canadian state to create political and legal space to accommodate revitalized Indigenous legal traditions and Aboriginal law-making."48 The project of revitalizing Indigenous legal traditions requires the commitment of resources sufficient for the task, and transformative change to procedural and substantive law. The operation of these laws within, or in addition to, Canadian law would of course cause widespread, but worthwhile controversy. In Animal Bodies, Cultural Justice49 Deckha argues that an ethical relationship with the animal Other must be established in order realize cultural and animal rights. This paper explores and demonstrates the value in finding legal space where cultural pluralism and respect for animals can give rise to the practice of Indigenous laws and the revitalization of animal-Indigenous relationships. As Borrows writes: "Anishinabek law provides guidance about how to theorize, practice and order our association with the [E]arth, and could do so in a way that produces answers that are very different from those found in other sources."50 (see PDF for references)
Githa Hariharan, a leading novelist of our time is an astute observer of cultural, political and historical realities of India. Her strong social and political commitment also finds expression in her social activism. She emerges as a writer with political consciousness in her novelIn Times of Siege. If the novelist is asked why she had to writeIn Times of Siegethe answer would perhaps be similar to why she had to go to court challenging the law that a mother could not be the natural guardian of her children unless the father is dead. It was only because of Githa Hariharan that in the"history of women's legal right in India, the court ruled that the mother would undoubtedly be the natural guardian according to the Indian Constitution."*1Similar is the way with Shiv Murthy, the hero of the Githa Hariharan's novelIn Times of Seigewho rejects the threats of fundamentalists. In fact by keeping history as the foundation of the novel the author wants to show that fundamentalism and extremism can be a major threat to academic freedom along with civil society. Hariharan has very skillfully fictionalized the theme of false nationalism, prejudiced ignorance and intellectual intolerance in the nove
This book describes how corporate powers have erected a rapacious system of intellectual property rights to confiscate the benefits of creativity in science and culture. This legal system threatens to derail both economic and scientific progress, while disrupting society and threatening personal freedom. Perelman argues that the natural outcome of this system is a world of excessive litigation, intrusive violations of privacy, the destruction system of higher education, interference with scientific research, and a lopsided distribution of income.
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The Rule of Law is a group of legal rules which limit the sovereign power and preserve the individual rights. Before the Declaration of the Rights of Man and of the Citizen of 1789 established a genuine constitutional authority in France, the natural law legitimized politics. At that time, the economy gave to the interest more importance to individual interest and competition between men became a model for the political organization. While Montesquieu and the political economists combine sovereign authority and the self-expression of the vested interest, Rousseau founded society on political right and identified the general will as the guiding principle of political acts. If political philosophers Montesquieu and Rousseau agreed on the respect of freedom and the safety of people, the former detailed the main methods of political organization and called for a restriction of the executive power while the latter confirmed the all- mighty sovereign. The history of the different philosophical, anthropological, economical and legal inputs allows us to moderate the political influences of Montesquieu and Rousseau on the main themes of vested interest, general interest - discussed nowadays in France by legal experts - without reducing them. ; L'État de droit se présente comme un ensemble de règles juridiques qui limite la puissance souveraine et préserve les droits individuels. Avant que la Déclaration des droits de l'homme et du citoyen de 1789 n'acquière en France une véritable autorité constitutionnelle, la loi naturelle légitimait le politique. Si Rousseau a donné à la loi un fondement philosophique avec la volonté générale, Montesquieu a accordé à la concurrence une fonction primordiale dans la reconnaissance conjuguée de la liberté et de la propriété des hommes. A cette époque, l'économie donnait à l'intérêt particulier une importance toute nouvelle et la concurrence entre les hommes devenait même un modèle pour l'organisation politique. Alors que Montesquieu et les économistes associent l'autorité du souverain et ...
