Law and Modern States, 2013, No. 6


                LAW
                AND MODERN
                STATES




Comparative Studies Journal







2013 / № 6

                 LAW AND MODERN STATES
                 Comparative Studies Journal


FOUNDER: Consulting and Legal Protection of People Foundation

ISSN 2307-3306

DOI: http://dx.doi.org/10.14420/












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EDITORIAL BOARD:


Svetlana Boshno, Doctor of Legal Sciences, Professor (Moscow)
William E. Butler, John Edward Fowler Distinguished Professor of Law Dickinson School of Law, Pensylvania State University (USA)
Olga Belousova, Doctor of Economics, Professor (Moscow)
Marina Davydova, Doctor of Legal Sciences, Professor (Moscow)
Kadyrbech Delokarov, Doctor of Philosophical Sciences, Professor, Honoured Science Worker of Russian Federation (Moscow)
Ekaterina Dogadailo, LLD, Ph.D (Jurisprudence), Associate Professor (Moscow)
Jenny M.T. Hardjatno, Doctor, ProfessorUniversity of Indonesia, Director of Center of European Studies University of Indonesia, Jakarta (Indonesia)
Abulfas Guseinov, Doctor of Legal Sciences, Professor Baku State University (Azerbaijan)
Marina Markhgeim, Doctor of Legal Sciences, Professor (Rostov-on-Don)
Elena Nazarova, Doctor of Sociological Sciences, Professor (Moscow)
Sergey Pavlikov, Doctor of Legal Sciences, Professor (Moscow)
William E. Pomeranz, Doctor of Legal Sciences, Ph.D., Deputy Director Kennan Institute (USA)
Igor Ponkin, Doctor of Legal Sciences, Professor (Moscow)
Valery Rybalkin, Doctor of Philology, Professor Kiev National State University, Head of Division of National Academy of Sciences (Ukraine)
Alevtina Shevchenko, Doctor of Political Sciences, Professor (Moscow)
Olga Tsybulevskaya, Doctor of Legal Sciences, Professor (Saratov)
Andrey Vassoevich, Doctor of Philosofical Sciences, Ph.D. (Economics), Professor (St. Piteresburg)
Elena Vinogradova, Doctor of Legal Sciences, Professor (St. Pitersburg)

            CONTENT


EDITORIAL
Vasyuta Galina Georgiyevna JURISPRUDENCE (LEGAL THEORY): A FRESH APPROACH TO LEGAL THEORY (DOI: http://dx.doi.Org/10.14420/en.2013.6.1)

LEGAL PROBLEMS IN THE PREVENTION OF CORRUPTION
Davydova Marina Leonidovna, Akhmetova Nailya Akhmetovna PROBLEMS OF METHODOLOGY AND METHODS OF ANTI-CORRUPTION EDUCATION IN RUSSIAN LAW SCHOOLS (DOI: http://dx.doi.Org/10.14420/en.2013.6.2)

COMPARATIVE LAW RESEARCH
Novikova Alevtina Yevgenyevna, Markhgeim Marina Vasilyevna MITIGATION OF HUMAN RIGHTS RISKS: CONSTITUTIONS OF FEDERAL STATES IN EUROPE
(DOI: http://dx.doi.org/10.14420/en.2013.6.3)
Markhgeim Marina Vasilyevna, Moskalenko Stanislav Aleksandrovich CONSTITUTIONAL ENTRENCHMENT OF THE PRINCIPLE OF THE EQUALITY OF RIGHTS AND FREEDOMS FOR MEN AND WOMEN: ANALYSES OF FOREIGN PRACTICES (DOI: http://dx.doi.org/10.14420/en.2013.6.4)

PSYCHOLOGY OF PROFESSIONAL ACTIVITIES. LEGAL CULTURE
Ovsyanikova Yelena Alekseyevna, Savelyeva Irina Vladimirovna, Dolzhenko Natalya Igorevna PSYCHOLOGICAL CULTURE OF PERSONALITY AS A FACTOR IN THE PREVENTION OF PROFESSIONAL DEFORMATION
(DOI: http://dx.doi.org/10.14420/en.2013.6.5)
Zubenko Vladimir Mikhaylovich LEGAL EDUCATION OF STAFF OF CLOSED FOSTERING INSTITUTIONS FOR MINORS AND THE FUNCTIONS OF THE MODERN STATE (DOI: http://dx.doi.org/10.14420/en.2013.6.6)

LAW-MAKING AND LAW-MAKING PROCESSES
Seredin Pavel Vadimovich LAW-MAKING OF LOCAL SELF-GOVERNING BODIES: PROCEDURE AND RESULTS (DOI: http://dx.doi.org/10.14420/en.2013.6.7)
Krasavin Aleksandr Vadimovich PROBLEMS OF LAW-MAKING IN THE AREA OF TECHNICAL REGULATION (DOI: http://dx.doi.org/10.14420/en.2013.6.8)

JURISPRUDENCE: PRESENTATION OF A TEXTBOOK
Boshno Svetlana Vladimirovna STATE (DOI: http://dx.doi.org/10.14420/en.2013.6.9)

                   EDITORIAL


                   JURISPRUDENCE (LEGAL THEORY): A FRESH APPROACH TO LEGAL THEORY
DOI: http://dx.doi.Org/10.14420/en.2013.6.1
      Our editor’s office is publishing chapters of a textbook entitled “Jurisprudence” by Svetlana Vladimirovna Boshno, the Editor-in-Chief. We would like to share the purpose of that publication, as well as the reasons for its publication in this magazine, with you.
      S.V. Boshno is a professor with a Doctor of Juridical Science. She has worked in the Russian supreme legislative body - the Federation Council - and in the Ministry of Justice of the Russian Federation. In addition, she has more than 20 years of teaching experience and is the author of more than 160 scholarly, academic and publicistic works. In the course of her work on the textbook “Jurisprudence,” S.V. Boshno has, among other things, consulted competent authorities who understand the totality of the problems involved in the mutual juridical understanding of Russia, the USA, and Germany (Ch. Osakwe), and who have mastered the subtleties of the terminology and definitions in the field of comparative law (W.E. Butler), as well as specialists from the US Library of Congress Law Library (P. Rodik, P. Craig).
      The textbook “Jurisprudence” is the result of cross-cultural analysis and is a search for interrelations and new possibilities for mutual cooperation between legal systems. It should be noted that legal theory is the national name of the basic legal science that is its methodological foundation, and jurisprudence is a traditional Anglo-American encyclopedic science that fulfills a role that is analogous to the role of legal theory in the Russian legal system. S.V. Boshno is attempting to implement the following provision:
“legal theory” = “jurisprudence”, which is a task that is extremely complicated and important. Such an approach is rather eclectic and it is a result of the author’s firsthand experience in the transformation of Russian legal doctrine into a source of knowledge that is understandable to representatives of theAnglo-Saxon legal system. “Jurisprudence” by S.V. Boshno is an original publication that is designed for broad readership in

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Russia, as well as in English-speaking countries.
      The model of the theory of law and state that is accepted in Russia (as well as the model of the theory of state and law) requires a systemic reconsideration and adaptation in order to meet modern social needs and the objectives of legal education. The theory of law is a philosophic science that addresses one’s outlook on the world. It is the basis of law and legislation throughout the entire world. The following fact is much more extraordinary. Reforms have radically affected all of the branches of Russian law, legislation and law enforcement, but their methodological basis - the underlying theory of law and state - was preserved practically unchanged. Naturally, this does not answer the needs of the modern age and it has, in no small degree, lost its prognostic and heuristic principles. S.V. Boshno proposes her own alternative to rethink the basic theoretical and judicial formation of national jurisprudential concepts. The Russian legal mentality is taken as the basis of “Jurisprudence”; however, at the same time, the conceptions of jurisprudence in the framework of other types of legal systems and types of legal conceptions are taken into account.
      The textbook “Jurisprudence” by S.V. Boshno provides a solution for the basic educational problems that accompany national law theory during the process of training lawyers. The textbook considers foundational legal concepts such as the understanding of law, the origin of law, the characteristics of law, the system of law, systematiztion, lawmaking, law enforcement, analogies, and the sources and forms of law. Certain issues are given a more prominent place in “Jurisprudence” in comparison to their traditional representation: public and private law, common law, legal proceedings, as well as a number of other issues. The topical area of the publication has been extended due to problems such as liabilities, infliction of harm and unjustified enrichment, as types of juridical facts.
      Some English-speaking readers have attempted to become familiar with the national law theory using translations of works by leading Soviet and Russian legal scholars (for example, works by D.A. Kerimov, L.S. Yavich, Yu.A. Tikhomirov etc., which have been published in English). The translations are united in that they contain Soviet or Russian legal constructions that have not been adapted for foreign readers. The complexity of translation is associated with the fact that there are many juridical phenomena in Russia and in other countries that have identical names or are described by similar words, but have different senses. For example, the usage of the term “code” differs: In Russia, a “code” is a large basic systematised law issued by the State; in the USA, the “CODE” is the code of laws, i.e., the totality of laws in force; and in British law dictionaries, a “code” is defined as an archaic term from Justinian times. In an additional example, in Russia, there are two terms: “legislative drafting” and “law-making”; however, American terminology does not include such a difference and limits itself to one collective term, i.e., “lawmaking”. These and other subtleties of legal theory and practice are accessible only to legal specialists, and very often, they are not adequately reflected in translation. Therefore, the existing translations of works by national legal scholars generally reflect the construction of “State and law theory,” but they

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are not easily understandable or appropriate for readers who are abroad.
      There also are works by foreign authors that are devoted to the national legal science, for example, “Russian Law” by W.E. Butler. However, for the most part, they are reviews of Russian legislation in various spheres: constitutional, criminal, family law and others; they do not represent an alternative to textbooks on jurisprudence. Rather, they are descriptions of Russian legal institutions and branches of law.
      The textbook that is presented by S.V. Boshno adapts national law theory to the realia of Anglo-American legal culture and, accordingly, the order of exposition, the topical areas, and the style of exposition are substantially modified in it, making it accessible and understandable to national as well as foreign (English-speaking) readers. Therefore, the informative novelty of “Jurisprudence” in comparison to traditional textbooks that address legal theory should be mentioned.
      Jurisprudence, as legal theory, is an introductory and basic aspect of legal science and is where the training of lawyers usually starts. It considers basic issues - the nature and essence of law, types of legal consciousness, etc. However, foreign textbooks on jurisprudence do not address a number of substantive subjects and issues that are essential elements of the Russian theory of law. For example, the problems of lawmaking, legal consciousness, legal order and course of law are not considered. In national textbooks and discussions that are relative to the subject of the theory of law and state, the issue of the practicability of the consideration of the state in courses that are aimed at training lawyers about basic concepts of law does not lose its significance. At the same time, the subject of the “state” is also an inseparable aspect of jurisprudence in its Anglo-American version, although the content of that subject differs substantially from the Russian standard.
      The textbook “Jurisprudence” by S.V. Boshno is not a mechanical translation of a Russian textbook on the theory of law into English; rather, it is an exposition of the Russian point of view on jurisprudence that has been adapted for the understanding of both national and Anglo-American readers. “Jurisprudence” is an original comparative law exposition of jurisprudence as the basis of juridical thinking and mentality. The textbook “Jurisprudence,” as envisioned by S.V. Boshno, contains five sections and comprises 35 chapters:
      SECTION I.        LEGAL SCIENCE (Chapter 1. Jurisprudence as a basis, theory and philosophy of law. Chapter 2. Jurisprudence as a science).
      SECTION II.        ESSENCE OF LAW (Chapter 3. Search for the beginnings and essence of law. Chapter 4. Origin and development of law. Chapter 5. Law in the system of social regulation. Chapter 6. Law schools on the essence, nature and intended purpose of law. Chapter 7. Essence of law. Chapter 8. Attributes of law).
      SECTION III.        EXTERNAL EXPRESSION OF LAW (Chapter 9. Sources and forms of law. Chapter 10. Test cases and judicial practice. Chapter 11. Customs in the system of sources of law. Chapter 12. Legislation. Laws and other state acts. Chapter 13. National and international law. Chapter 14. Codification. Chapter 15. Methods of legal regulation. Chapter 16. Norm. Normalization. Normativism. Chapter 17. System of law, system of legislation, and system of the sources of

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law).
      SECTION IV.          LAW AND SOCIETY (Chapter 18. Legal relations. Chapter 19. Persons in law. Chapter 20. Objects of law. Chapter 21. Legal facts. Chapter 22. Violations of law. Chapter 23. Accordance to law. Chapter 24. Responsibility. Chapter 25. Law and personality. Chapter 26. State. Chapter 27. Private law. Chapter 28. Public law. Chapter 29. Legal proceedings. Chapter 30. Interpretation).
      SECTION V.          LEGAL SYSTEMS (Chapter 31. Legal map of the world. Chapter 32. Sources of law in different legal systems. Chapter 33. Comparative legal science. Chapter 34. Lawmaking and legislative proceedings. Chapter 35. Legal consciousness and legal culture).
      “Jurisprudence” by S.V. Boshno is a systematic exposition of the civil law doctrine that is dominant in Europe and Russia, as well as in the states that survived the collapse of the Soviet Union. The publication of excerpts of “Jurisprudence” in our magazine is a practicable way to allow interested persons to become familiarized with difficult chapters in the textbook. We invite all of the interested readers of this magazine to engage in a discussion of it and we await your comments and suggestions. The inclusion of the textbook in our magazine will enable us improve it by the time of its “advent.” For foreign readers, the publication of excerpts of the textbook provides an opportunity to become acquainted with legal doctrine as presented by a Russian professor.

    Galina Georgiyevna Vasyuta

Deputy Editor-in-Chief

                    THEORY OF LAW

                    PROBLEMS OF METHODOLOGY AND METHODS OF ANTI-CORRUPTION EDUCATION IN RUSSIAN LAW SCHOOLS
DOI: http://dx.doi.Org/10.14420/en.2013.6.2
Davydova Marina Leonidovna, Doctor of Juridical Science, Assistant Professor and Head of the Constitutional and Municipal Law Department of the Volgograd State University, e-mail: davidovavlg@gmail.com.
Akhmetova Nailya Akhmetovna, Candidate in Sociological Science, Assistant Professor in the Constitutional and Municipal Law Department of the Volgograd State University, e-mail: akhmetova_nailya@mail.ru.

Abstract.           The article considers, from the perspective of the authors’ practical
                    experience, the problems in methodology and method that arise when teaching the disciplines directed at developing an intolerance for corruption. The authors point to the need to have an organized system for teaching, emphasize the stereotypes that prevent effective anti-corruption education, and offer a concrete methodical technique for such an education.
Keywords:           corruption, anti-corruption education, methods of teaching in higher
                    education, legal education, methods of teaching, methodology of teaching, teaching situation, legal consciousness, legal enlightenment, educational standard, education efficiency.

      The state educational standard that is in effect in Russia, in full accordance with the UN Convention against Corruption¹, establishes the formation of an intolerant attitude toward corruption as one of the priorities of legal education. Achievement of that objective is hardly possible without the use of a combination of measures that includes, as a minimum, two aspects of influence: those that are organizational and those that are content-related.
      The first aspect implies the need for a system for the organization of the educational process, including (1) the development and introduction of special courses that expose the social and legal sources of corruption and that provide an understanding of the tools that are available for its prevention; (2) the inclusion of content in traditional educational courses (of criminal, administrative, and municipal

¹ United Nations Convention against Corruption, adopted in New York on October 31, 2003 by Resolution 58/4 at 51st plenary meeting of 58th session of the UN General Assembly, ratified by the Federal law of March 08, 2006 No 40-FZ (Legislation Bulletin of the Russian Federation. - 2006. - No 26. - Art. 2780).

Davydova M.L., Akhmetova N.A.
Problems of methodology and methods of anticorruption education in russian law schools

10

law, and procedural disciplines) that will allow a student to study aspects of the problem at issue; and (3) the introduction of an anti-corruption component in other educational subjects, so that the topic is a keynote of the entire professional education process.
       A system of organization for the educational process implies a rational sequence of subjects in the framework of a plan of instruction. There are no hard rules, however; often, the order in which subjects are studied is subject to a number of external circumstances to which a teacher is forced to adjust. Nevertheless, the formation of a certain logic in the presentation of educational material is necessary in any case. For example, the plan of instruction that is carried out in the education of lawyers in Volgograd State University includes the discipline “Anti-corruption legislation” in the second term of the first course. This, undoubtedly, creates certain complications that are connected with the insufficient level of professional knowledge possessed by the students. Further, this is why it is necessary to concentrate attention on the teaching process, rather than on an analysis of current legislation (with which the students are also not well oriented). Rather, there must be a consideration of basic issues: the concept of corruption, the reasons for it, the basic tools for anti-corruption enforcement and international experience of their use. Notwithstanding certain complexities in the apprehension of that material, its acquisition during the first course provides an unconditional positive effect by introducing the general background for anti-corruption education. During the second course in the framework, which is the discipline of “Legal engineering”, merely mentioning the necessity for the examination of draft laws by anti-corruption experts is sufficient - its essence and meaning are already understandable to students. If the students retain the knowledge that they acquired during the frst course, they will be able to practice performing that expert examination by drawing upon the knowledge that was gained in the frst course. This allows them to not only save time, but to achieve a higher degree of effciency in their learning with respect to both their recognition of the knowledge and the addition of new elements to it by recalling information that is already familiar to them.
       It would be possible to organize the educational process in another way, i.e., if a special discipline devoted to corruption in the curriculum was moved to senior courses. In that case, it would be necessary to emphasize an analysis of industry-specifc legislation, as well as the generalization and evaluation of legal knowledge that has been gained previously from the point of view of anti-corruption activities. In any case, the distinct interrelation of disciplines is important.
       A system for the construction of the educational process is able to provide a higher degree of effciency in anti-corruption education, although this cannot be guaranteed in the absence of adequate informative content.
       In terms of its content, the most complicated issue is not simply the selection of issues that are worthy of consideration, but rather, a commitment to the negotiation of the stereotypes that are connected with the idea of corruption in the consciousness of students. Let us consider two such stereotypes as examples.
       The frst one is characteristic, to a greater extent, of young audiences and it implies a gap between the abstract notion of “corruption” and the concrete realities of their own lives. Students often do not see the connection between theoretical

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constructions and legislative language, on the one side, and the facts of the surrounding reality, on the other. Their consciousness of the sober fact that many customary social relations are corrupt in nature provides not only understanding, but a subjective perception of the whole of the instructional material. Only such a perception will ensure the success of anti-corruption education. That is why the first methodological task is not simply an explanation of what constitutes corruption, but a demonstration of the fact that the aforesaid phenomenon concerns everyone in modern society.
      The second stereotype is connected with the attitude that overcoming corruption is impossible and with the perception that it is a permanent phenomenon that is natural in society as a whole, and in Russian society, in particular, and that, for that reason, it is unconquerable. The more experienced the students are in their lives and in their professions, the stronger this stereotype is. If a person encounters the phenomena of corruption in the real world, he will incorporate them into his picture of the world, and thus, he will not be able to imagine that life can be organized differently. This stereotype is the most dangerous and intractable.
      To affect it, it is necessary to conclusively establish two concepts. (1) Corruption is an unconditionally negative phenomenon. Sometimes it can be perceived (occasionally, unfortunately, quite reasonably) as something natural, customary, regular, or even convenient for the achievement of momentary objectives; however, this in no way justifies the moral turpitude and corrupt influence that corruption has on social, political and legal life. (2) Tools to fight against corruption exist. Many of them have been successfully evaluated in foreign countries, while others are being developed to address specific national needs. Their implementation is often connected with great complexity and requires a complex approach and political will; however, it is necessary for students to assimilate the major idea: It is possible to vanquish corruption in principle.
      The last thesis deserves special emphasis. The issue of the potential to completely eradicate corruption comes within the range of philosophical and legal possibilities and it stands in the same row as a discussion of a final victory over criminality. It is certainly necessary to discuss the issue within the framework of the educational process. Furthermore, its discussion at various stages in the consideration of the problem can fulfill a variety of functions. Accordingly, an essay on the reasons for corruption and the possibilities of overcoming it that is assigned to students in the beginning of a corresponding educational course will allow instructors to evaluate the level of apprehension of that subject matter by the audience, to bring the stereotypes that are characteristic of it to light, and consequently, to set the tone for further dialogue. Furthermore, such work encourages students to gain an independent understanding of the problem, which involves them in further study of it. A final discussion of the same issue, which is held at the end of an educational course, can fulfill other goals. Such a discussion assumes a more qualified consideration that generalizes the knowledge that has been gained about corruption, including its origin and the tools that are available to overcome it. A student’s own position can receive approval and can be finally formed in the process of that discussion.