Looping effects of neurolaw, and the precarious marriage between neuroscience and the law

Author(s): Toma Strle,Olga Markič / Language(s): English Issue: 1/2018

In the following article we first present the growing trend of incorporating neuroscience into the law, and the growing acceptance of and trust in neuroscience’s mechanistic and reductionistic explanations of the human mind. We then present and discuss some studies that show how nudging peoples’ beliefs about matters related to human agency (such as free will, decision-making, or self-control) towards a more deterministic, mechanistic and/or reductionistic conception, exerts an influence on their very actions, mentality, and brain processes. We suggest that the neuroscientific view of the human mind exerts an influence on the very cognitive phenomena neuroscience falsely believes to be studying objectively. This holds especially when we consider the systematic integration of neuroscience into the public domain, such as the law. For, such an integration acts as a reinforcement of the public’s and legal decision-makers’ endorsement of and trust in neuroscience’s view of human nature that further changes how people think and act. Such looping effects of neurolaw are probably inevitable. Accordingly, we should be aware of the scope of neuroscientific explanations and be careful not to overstate neuroscientific evidence and findings in legal contexts.

An Essay on the Mind-Brain Problem and Legal Proof

Author(s): Drozdstoy St. Stoyanov / Language(s): English Issue: 1/2018

The aim of this paper is to highlight the rationale behind the use of data from neuroscience, particularly neuroimaging, in psychiatric legal expert procedures and their interference with the mind-brain problem. The critical argument is that the employment of mental health evaluation of the defendants and/or witnesses as collected with clinical assessment methods in court proceedings should not be considered irrespective to the data from neuroscience. Essentially, neuroscience methods belong to the domain of nomothetic (natural explanatory) knowledge, whereas clinical evaluation methods in psychiatry belong to the domain of intra- and inter-subjective narratives. There exists an explanatory gap between those two groups of disciplines which concerns the ability to translate and integrate data across diverse methodological and terminological systems. Furthermore, it depends largely on the implicit positions in the mind-brain debate and the brain-to-behavior connections, which reflect on the professional and legal reasoning in terms of prioritizing certain solutions or approaches over another in the expert judgements. There are described those tacit positions adopted in the mind-brain debate by different traditions in psychiatry, with special emphasis on reductive and non-reductive forms of physicalism. In conclusion, a cognitive pluralist stance is adopted which sets priority for the supervenience theory of mind.

Naturalizing the subjective side of the crime: a few introductory remarks on the role of consciousness in criminal law based on American and Polish examples

Author(s): Bartosz Janik,Maciej Próchnicki / Language(s): English Issue: 1/2018

Advancements in neuroscience cast new light on the functioning of the human mind. This is especially important within the context of criminal law, wherein consciousness plays a crucial role in determining criminal responsibility. Yet, there are some caveats in the direct application of these new findings, most of which are related to the specific conceptual framework of law based upon common sense knowledge and (sometimes) outdated psychology. This framework has also produced different doctrines of interpretation in the systems of common and civil law. Moreover, the goals of the law are to some extent different from scientific research on the brain. The aim of this study is to assess to what extent and under what interpretation scientific knowledge concerning consciousness might be useful for legal purposes, especially for the criminal law. Our assessment is that most of the current concepts of criminal law are directly related to outdated psychological and neuroscientific theories, and that the content of those concepts should be updated according to the newest scientific findings while remaining in accordance with the primary functions of criminal law.

Applying Confirmation Theory to the Case against Neurolaw

Author(s): Anton Donchev / Language(s): English Issue: 1/2018

Neurolaw is the emerging research field and practice of applying neuroscientific knowledge to legal standards and proceedings. This intersection of neuroscience and law has put up some serious claims, the most significant of which is the overall transformation of the legal system as we know it. The claim has met with strong opposition from scholars of law, such as Michael Pardo and Dennis Patterson (2011), who argue that neurolaw (and neuroscience more generally) is conceptually wrong and thus perceive most of it as “nonsense” (Patterson, 2003). I expose a flaw in Pardo and Patterson’s arguments by means of confirmation theory. My main point is that Pardo and Patterson use implicit hypothetico-deductivism in their attack on neurolaw, and that we have good reasons to doubt the employment of such a model, because it faces serious theoretical problems. I then demonstrate how the alleged problems associated with neurolaw disappear if we use a quantitative probabilistic account of confirmation. I also explain why it provides a better account for the way the legal system actually works.

Freedom, Responsibility and Jurisprudence

Author(s): Hari Narayanan V / Language(s): Bulgarian Issue: 1/2018

This paper seeks to argue that advances in the study of freewill and responsibility are directly relevant to jurisprudence. Following Daniel Dennett attempts to discredit the existence of freewill with the help of experiments can be checked by arguing that freedom should be understood as something that has evolved over time rather than being a pre-existent feature of our species. The major function served by freedom is to ensure responsibility for actions. This understanding of freedom as something that evolved to enhance responsibility suggests that freedom can be developed further. This can be understood as enhancing the ability to follow social norms by overcoming factors that limit responsibility. Jurisprudence has to take into account the ability to follow norms as a variable, even within the category of adults, and treat violations accordingly. Further, efforts to enhance the capacity to be free from habitual reactions need to be made part of education, and the state has to focus on this aspect without which the task of ensuring adherence to law of citizens will remain incomplete.

Retributivist Theory of Punishment: Some Comments

Author(s): Adebayo Aina / Language(s): English Issue: 1/2018

The Retributivist approach to punishment attempts to address the challenges posed by utilitarian conception that punitive actions should strictly be associated with a cost-effective means to certain independently identifiable goods at the expense of justice. Justice proffers how the guilty deserve to be punished and no moral consideration relevant to punishment outweighs an offender’s criminal desert. However, this just desert provokes difficulty in discerning proportionality between the moral gravity of each offence and the specific penalties attached. This consequently degenerates to another form of ‘lex talionis’ (revenge) in punitive justice.

Konstytucyjność uregulowań w zakresie nadzoru fachowego nad szkołami wyższymi w Polsce na gruncie ustawy Prawo o szkolnictwie wyższym i nauce

Author(s): Agnieszka Bednarczyk-Płachta / Language(s): Polish Issue: 4/2020

The Polish Accreditation Committee (Polska Komisja Akredytacyjna – further as „PKA”) is an entity authorised to conduct control activities supporting the minister’s supervisory competencies. The institution aroused great controversy from the very beginning. The procedures and operating principles, as part of professional supervision, have been declared as unconstitutional. Despite the fact that the decisions issued by the Constitutional Tribunal are generally applicable, it’s not known why the legislator feels he is released from his obligation to comply with the Tribunal’s decisions, putting into legal circulation regulations which are already considered unconstitutional. In the field of regulations on professional supervision over universities the presented situation not only undermines the fundamental rights of universities, as entities external to public administration, but also has the direct impact over citizens’ rights – students studying in controlled universities. The presented study discusses the law regulations of higher education and science in the scope of the procedures and competences given to the PKA in terms of their compliance with the Constitution. Comparing previously applicable higher education law before and after Constitutional Tribunal’s passed verdict from 2013 (which stated the unconstitutionality of regulations in the scope of the control procedure carried out by PKA) with applicable law allows to support the thesis about the unconstitutionality of new regulations introduced in this respect and depriving universities of the right to an effective defence. Derived conclusions clearly indicates that the new law, which in its assumptions was to be better and revolutionize higher education in Poland, is another legal act requiring a thorough change from the very beginning, which does not improve the legal situation of universities in Poland in the examined scope, and in some aspects makes the situation much worse.

CONSTITUTIONAL TRADITIONS – THE BULGARIAN PERSPECTIVE

Author(s): Anna-Maria Atanasova / Language(s): English Issue: 1/2021

The term “constitutional tradition” is undefined by legislation and jurisprudence. Considered as a notion of common knowledge, it nevertheless raises questions as to its ideological scope and content. This paper focuses briefly on the different theories for the scope of constitutional tradition and its relationship with national/constitutional identity. It traces the evolution of Bulgarian constitutional history on the basis of which some key elements inherent in the national constitutional model are deduced. Tconsthen it places Bulgarian constitutional tradition within the larger context of the membership in the European Union. The article cites several judgments of the Constitutional court which refer to constitutional tradition and draws conclusions for its significance.

CONSTITUTIONAL MOMENT OR FAILURE: CONSTITUTIONAL POLITICS IN BULGARIA 2020

Author(s): Atanas Slavov / Language(s): English Issue: 1/2021

Constitutional politics in Bulgaria is rather transient and unpredictable process. Constitutional changes very often follow not established principles and standards, but the logic of political expediency of the moment. Upholding the independence of the judiciary in the context of declining rule of law and democratic standards is a challenging matter. After 30 years of democratic experience, Bulgaria has not completed key institutional reforms in the judicial branch. Constitutional amendments are again on the political agenda concerning the structural division of the Supreme Judicial Council that will ensure independence of the judiciary, and the need of accountability and effective procedure of dismissal of the over-powerful Prosecutor General. How to mobilize political and public support for the amendments implementing established European standards remains a crucial task for the Bulgarian political elite and the civil society to work out.

Migration at European Union level in correlation with the Public Administration

Author(s): Irina Zlătescu,Alexandra Bucur / Language(s): English Issue: 8/2020

The phenomenon of immigration requires special attention in the field of public administration. The article presents in the initial part the correlation between migration and public administration. Following, there are the main developments of migration at EU level, with a focus on September 2019. The “hotspot approach” is also highlighted during the study. At the end of the article is presented the importance of public administration in relation to the new transformations of the society, migration being one of these.

The Lack of Legal Protection of Union Rights on Termination of Fixed Term Academics at Public Universities in the Flemish Community of Belgium. Admissibility Issues of an Application Based on the Framework Agreement on Fixed-term Work at Public Unive

Author(s): Gracienne Lauwers / Language(s): English Issue: 4/2020

The question of sufficient protection of academics employed with successive fixed-term employment contracts or relationships in the university sector had been raised in several procedures before the Court of Justice of the European Union (hereafter: CJEU). These cases deal with the substantive basis of the claims of the academics. Admissibility of their claims was not an issue. Unlike the research dealing with the substantive basis of the claims of academics based on the Framework agreement on fixed-term work, this article deals with a ruling on the admissibility of the plea based on the Framework agreement on fixed-term work encountered by academics in the Flemish Community of Belgium. The article first outlines the exception from general labour law in the Higher Education Code of the Flemish Community of Belgium that allows universities to employ academics indefinitely with fixed-term relationships through the practice of a mosaic combination of a part-time statutory employment under administrative law and a part-time contractual employment under labour law. It then discusses the impact of the exceptions on the admissibility of claims for damages, compensation and reinstatement by fixed-term academics at a Flemish public university based on the violation of Council Directive 1999/70/EC and Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP brought before the Council of State, which is the supreme administrative court of Belgium. The author argues that the Belgian Council of State incorrectly applied Directive 1999/70/EC and the Framework agreement on fixed-term work in judgment no. 247.434 of April 21, 2020, while it was – in its capacity of supreme administrative court of Belgium – under the obligation of Article 267 TFEU to refer for a preliminary ruling to the CJEU. The refusal by the Belgian Council of State to refer questions for a preliminary ruling to the CJEU and a wrong interpretation of Union law could result i. a. in State liability for damage resulting from breach of its obligations under Community law whereas the CJEU could have helped the Belgian Council of State in a preliminary ruling to determine the concept of ‘successive’ employment relationships, preventive measures and measures to punish abuse of fixed term contracts in Flemish universities, rule whether the articles in the Flemish Higher Education Code on vacancies and employment of fixed-term academic staff violate the Council Directive 1999/70/EC and Framework agreement on fixed-term work, and whether national Belgian procedural law makes the application for fixed-term academic staff at a Flemish public university virtually impossible or excessively difficult and therefore incompatible with the principle of effectiveness of Union law.

Linden Thomas, Nick Johnson (eds.), The Clinical Legal Education Handbook, University of London Press, London 2020, pp. 465

Author(s): Paul McKeown / Language(s): English Issue: 4/2020

American Studies in Poland

Author(s): Tomasz Płudowski / Language(s): English Issue: 21/2020

The article presents the development and current state of American Studies in Poland as a discipline, starting with its historic and political background, through institutional foundations, to current research and teaching, especially from the social scientific perspective. The article argues that American Studies went from virtual absence in Stalinist Poland to post-1989 rapid expansion and continues to attract students despite the lack of institutional and disciplinary independence. Even though it is mostly affiliated to English programs, it continues to go outside the boundaries of the traditional approaches of history and literature to include cultural studies, political science, sociology, communication, and law.

Three-Dimensional (3D) Printing as Intellectual Property

Author(s): Vladislava Petrova / Language(s): English Issue: 1/2020

The subject matter of this article is the three-dimensional (3D) printing and its protection as industrial property, more particularly as inventions. It indicates the essence of 3D printing and the areas of application of the technology. The protection of the results of 3D printing as inventions is considered, also the advantages and disadvantages of additive manufacturing are analysed. A profile of the enterprises developing 3D printing technologies has been made. The results of the performed patent research are analysed. The filed applications for inventions and the issued patents in the field of 3D printing in a national and international aspect are identified.

Fundamental Rights: Comparison of the Approaches in the Canon Law and in the Civil Law

Author(s): Stanislav Přibyl / Language(s): English Issue: 6/2020

The Code of Canon Law of 1983 came up with a list of obligations and duties of the Catholic faithful. This list is analogical to those of the charters of fundamental rights and freedoms found in the documents of international law and in the constitutions of democratic countries. the inspiration of church law by civilian law was a reality from the very beginnings of the development of Canon Law: first by Roman Law, in the modern world by complex codifications of civil law, and after Vatican II also the idea of universal human rights. The specifics of the Catholic Church in relation to a democratic state is the incorporation of the subject of law into the Church through baptism which brings, above all, duties and obligations. Thus the catalogue which may now be seen in the Code contains first and foremost a list of duties, not rights, which are not stressed in the modern state. In fact, the modern state has very few demands; often just the payment of taxes and compulsory school attendance. The article deals with the individual obligations and rights found in the Code of Canon Law and compares them with their analogies in constitutions. The concept of civil and canonical norms tends to get closer primarily in the case of inspiration by natural law, whereas the obligations of the faithful represent a specifically ecclesiastical goals, for which no analogy in civil law can be found. After all, the supreme law of the Church is the salvation of souls, indeed, the state does not have such a supernatural goal.

Od istorije do sudnice i nazad: Šta istoriografija može dobiti od presuda za zločine u ratovima u bivšoj Jugoslaviji

Author(s): Ivan Jovanović / Language(s): Serbian Issue: 5/2015

An Analysis of The Contents of History Textbooks in Serbia Regarding the Wars in the Former Yugoslavia in the Light of the Facts Established Before the ICTY

Author(s): Author Not Specified / Language(s): English Issue: 5/2015

Pe urmele generatiei Marii Uniri. Cornel Lutai (1889–1968) – primar al Aradului. Repere biografice

Author(s): Felicia Aneta Oarcea / Language(s): Romanian Issue: 30/2020

An emblematic representant of the generation of the Great Union, dr. Cornel Luțai (1889–1968) was born in Nădlac, Arad County; in November 18, 1911, he became a Juris Doctor at the University in Cluj. Once graduating he applied for a trainee lawyer at Szeged Bar (June 1, 1911–March 12, 1912), and at Arad Bar, working within the offices of advocates Nemet János and Iustin Marșieu up to July 1, 1914. He was invited to take part in Alba Iulia National Assembly in (December 1, 1918) and involved after in the political-administrative life in Arad. As a mayor of this town (1928–1931), he modernized the urban transport, embellished the center of Arad, and joined the neighouring villages; he also backed the cultural life and the deserving young people. The communist times did not absolve him from nationalization. Advocate dr. Corneliu Luțai, perseveringly and tiresomely setting his career, was a visionary mind, an important intellectual, and a reformer at his times. He weaved a worthy of consideration story on him, as well as the whole generation of the Great Union.

Legislation and morals in inter-war Resita

Author(s): Minodora Damian / Language(s): English Issue: 30/2020

Prostitution was taken for a social aspect at the unsubstantial limit between morals and physiologic needs; for issuing a delicate controversy, it was debated through themes concerning some socio-religious principles, blamed for shattering the heterosexual family. They said that it was generated by some pecuniary needs or, simply, as an effect of a behavioral deviation. The unsettled and frequently unwholesome way of life during and after World War I, especially in the case of the rural population, was one of the circumstances that allowed venereal diseases spreading, an imminent way to arise the mortality rate. The immense absorption of human capital fallowing the strong economic development substantially modified the demographic shape in Reșița; massive industrialization and urbanization in the iron working environments implicitly led to some social factions’ convergence in exploiting the working class ‘primary instincts’ for material benefits. The inter-war statistic researches present the existence of two owners of buildings in Reșița, where prostitution was frequently practiced. Family of Francisc and Rosa Crăciun, and Iuliu Bocor held locations nearby which the hypothesis of infantile prostitution and human trafficking was circulating. Daily starvation and sustenance during World War I were malign traces that contributed to inter-war social morals shattering and facilitated so the venereal diseases coming out. To stop prostitution extension, not to permit malign perpetuations, the local authorities, with the support of legal norms, undertook actions referring to the daily life in Reșița, in order to eradicate any tentative of spreading the bad results of carnal desires for mercantile aims. Consequently, approaching such a controversial and long debated theme means discussing about prostitution both as an antithetic element if reported to social, medical and even religious components of community, and a result of a mixture of elements coming from the basic instinct of surviving.

Ograniczanie wolności religijnej w pierwszym okresie pandemii COVID-19 w świetle orzecznictwa amerykańskich sądów

Author(s): Grzegorz Maroń / Language(s): Polish Issue: 23/2020

The article presents a critical analysis of the U.S. federal court rulings regarding restrictions on freedom of religion during the Covid-19 pandemic. The subject of judicial control were the executive orders prohibiting public religious gatherings or limiting the number of participants. The author shares the view of the part of the courts which assumed that the laws introducing stricter restrictions for churches and religious assemblies than for other comparable places and secular gatherings, in order to be constitutional, need to simultaneously pursue the compelling interest of the state and constitute proportional measures. While the protection of public health is a compelling interest of the government, the total prohibition of in-person church services or limiting religious gatherings to only a few people seem to violate the criterion of the least restrictive measure. When deciding what forms of social activity and businesses to exclude from the ban on public gatherings, the authorities cannot discriminatively assume that religious services are something secondary and not very urgent, especially if the same authorities consider the operation of e.g. liquor stores or shopping malls as “essential” or “life sustaining”.