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Formal Constraints in Legal Argumentation in Russia: the Case of the Russian Penal Procedure

Formal Constraints in Legal Argumentation in Russia: the Case of the Russian Penal Procedure. Ekaterina Samokina , National Research University HSE. Formalism in Russian legal system ; Confused legal notions ; Legal texts as constraints for legal argumentation ;

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Formal Constraints in Legal Argumentation in Russia: the Case of the Russian Penal Procedure

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  1. Formal Constraints in Legal Argumentation in Russia: the Case of the Russian Penal Procedure Ekaterina Samokina, National Research University HSE

  2. Formalism in Russian legal system; • Confused legal notions; • Legal texts as constraints for legal argumentation; • Formality of penal procedure in Russia.

  3. Formalism in Russian legal system • monopoly of the legislator to set out legal norms; • precise and univocal rules and concepts; • deductive decision-making procedure.

  4. Judicial syllogism • legal rule (the major term); • concrete case (the minor term); • decision (the conclusion) Example • Commitment of theft is punished by imprisonment (Art. 158 ) • A. committed a theft _______________________________________ A. ought to be punished by the imprisonment

  5. Administration of justice

  6. Judicial syllogism

  7. Confused legal notions Confused notions appear • in the beginning of discussion when the interlocutors are governed by prejudices; • after discussing the matter when there are still controversies related to a certain irreducible vagueness of the terms we use (the case of legal and moral notions).

  8. There are two reasons that explain the presence of confused notions in jurisprudence • jurisprudence deals with human behavior, its motives, values and beliefs of the society that could not be expressed in univocal and clear terms; • language that is used in jurisprudence is natural one in opposition to an artificial (formalized) language.

  9. Legal texts as constraints for legal argumentation The specific of positive law as a special field of argument: • It is governed by the well-defined texts; • has to be developed within a definite system.

  10. Can penal procedure be formal? Main legislative acts regulating penal law: • Penal Code defines crime, guilt, motive and target of a crime, punishment, recidivation etc. and describes different types of legally defined crimes and punishment; • Code of Penal Procedure which regulates the process of accusation, prosecution, court procedure etc.

  11. Codes Both the Codes contain formal constraints for the legal argumentation. • in Penal Code: essential elements of the crime, the event of the crime, measure of punishment etc; • in the Code of Penal Procedure: judicial process.

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