Inshakova A.O. Theoretical and Applied Expediency of Analyzing Legal Discourse in Procedural Law
DOI: https://doi.org/10.15688/lc.jvolsu.2024.3.1
Agnessa O. Inshakova, Doctor of Sciences (Jurisprudence), Professor, Honorary Worker of Higher Professional Education of the Russian Federation, Honorary Worker of Science and High Technologies of the Russian Federation, Expert of the Russian Academy of Sciences, Head of the Department of Civil and International Private Law (Base Department of the Southern Scientific Centre of the Russian Academy of Sciences), Volgograd State University, Prosp. Universitetsky, 100, 400062 Volgograd, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it. , https://orcid.org/0000-0001-8255-8160
Abstract. The relevance of research: the paper presents the editor-in-chief’s analysis of the scientific papers that have made up the key section of the present issue of the journal Legal Concept = Pravovaya paradigma entitled “Legal Discourse in Procedural Law: Theoretical Discussion and Practical Expediency.” The relevance of the research is determined by the fact that the concept of legal discourse can be attributed to new, previously not considered categories and phenomena in law (for example, such as legal field, legal matter, legal choice, legal framework). The emergence of these phenomena is caused by the cardinal transformations that have occurred in public relations in recent decades, which have required changes and improvements in legal science, education, and the consolidation of new concepts in it and, accordingly, their study on the pages of scientific publications in a comprehensive, debatable format. The scientific novelty of the feature topic is due to the objective need to define the boundaries of legal discourse, taking into account the fact that each of its types is characterized by its own terminological system, manifested in an orderly organization. For procedural law purposes, this is, first of all, a reasonable time, claim proceedings, adversarial system, parties to a trial, procedural costs, stages of the process, etc. The methodological framework for the research is a systematic evolutionary approach combined with structural and functional, temporal and spatial, comparative and documentary, statistical and econometric analysis, as well as legislative modeling. As a part of the study, the general scientific methods were used, including dialectical, inductive, deductive, analytical, predictive, and the specific scientific methods such as formal legal, the method of legal interpretation, the comparative law method, etc. The results of the study: from the standpoint of complexity, multiaspect, and interdisciplinarity, some complex, sometimes ambiguous definitions and approaches to the content of legal discourse in procedural law and the prospects for its research are studied. In the context of legal discourse, the core of which is, among other things, the conceptual expression of certain ideas, rules, and procedures in procedural law, the terms “judicial discretion” as well as “prosecution” and “defense” as fundamental concepts of the adversarial system are studied. New facets of the concepts of prosecution and defense are revealed, and their specific features are presented in the original author’s study through the prism of legal discourse. The scientific interest is focused on the institution of criminal and criminal procedure law – the court fine – as well as its practical relevance. Serious claims to the quality of its legislative implementation are analyzed. In terms of scientific significance and practical expediency, the problem of the correlation of the criminal procedural concepts of “premise” and “cause” in criminal proceedings is investigated. Some interesting developments concerning the linguistic features of normative statements are presented, which, in turn, are conditioned by the objective legal characteristics of the norms of law. Through the use of speech stereotypes, the analysis of scientific positions of understanding traces and evidence processed exclusively in digital form, their nature, and their correlation with generally accepted categories is carried out. A unified approach to understanding the nature of digital footprints and their scientific interpretation in criminology, criminal procedure, and other branches of legal science is being developed. Conclusions: having analyzed the concept of legal discourse, the author comes to the conclusion that it is so multidimensional and multifaceted that it is difficult to distinguish the main and secondary in it. All the elements are interconnected and constantly intersect with each other, creating a kind of integral system in which everything, from the letter of the law to the participant applying this letter, acts as an independent musical instrument of a large orchestra. In the studies presented in the feature topic of the issue, it is proposed to abandon the complication of the definition of legal discourse by eliminating the accumulation of various components in its content that are devoid of practical significance. It is recommended to proceed from the fact that legal discourse is, first of all, the art of using the word in the professional activity of a lawyer. It is concluded that judicial discretion is one of the key concepts in the Russian legal system and includes the analysis of the relationship with a judicial precedent, which is one of the sources of law; therefore, its analysis and mutual influence on judicial discretion seem to be important aspects. Based on legal discourse, it is established that the discretion of the court is able to ensure the legality of lawapplication and law-enforcement discretion of other bodies, organizations, citizens, and officials. Due to its complex nature, it has become possible to combine law and linguistics, building certain steps towards understanding the essence of the text in law. It is proved that the language in law is not only issues of legal technique and stylistics but also constructive aspects of the existence of law itself as a kind of social phenomenon. The facts and reasons for the “free” use of the term “accusation” at the legislative level and in its official interpretation are established. It is proved that this circumstance is largely a consequence of the scientific discourse on the essence of the accusation. The shortcomings of the legal regulation of the decision-making procedure on the termination of a criminal case with the imposition of a court fine are systematized. The proposals aimed at increasing the practical expediency of the procedural form are formulated. The conclusion is reasoned that the measures taken both to create conditions that complicate the process of making criminal assets legal and to identify and bring to justice the perpetrators are not effective enough. It is established that in the process of identifying and qualifying socially dangerous acts related to money laundering, many problems arise due to the ambiguity of interpretations of the legal signs of the type of crime in question. The most general theoretical positions on understanding the essence of trace and evidentiary information in the digital (electronic) environment are highlighted. The information on the main approaches to understanding this category is summarized, and some additions to the domestic legislation are proposed to eliminate existing contradictions.
Key words: legal discourse, procedural law, legal science, language of the legislator, language of law enforcement practice, language of legal journalism, reasonable time, claim proceedings, adversarial system, parties to a trial, procedural costs.
Citation. Inshakova A.O. Theoretical and Applied Expediency of Analyzing Legal Discourse in Procedural Law. Legal Concept = Pravovaya paradigma, 2024, vol. 23, no. 3, pp. 6-13. (in Russian). DOI: https://doi.org/10.15688/lc.jvolsu.2024.3.1
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