A. Vaišvilos siūlomos teisinio personalizmo teorijos ir metodo klausimu: kritinė studija

Author(s): Petras Ragauskas / Language(s): Lithuanian / Issue: 74 (4)/2011

The article provides criticism of theory and method proposed in the monograph of prof. Alfonsas Vaišvila. The author of this article has a notion that a research work proposing particular conception, theory or method may be evaluated taking into account the following aspects: to what extent the provided conceptual constructs are systematically completed, comprehensive and suitable for use, as well, how precisely, interesting, informative and originally the material reasoning and explaining the ideas is submitted. Hence, the criticism of the monograph provided for in the article is based on evaluation of adaptability and versatility of the proposed constructs, as well doubts arising during the analysis whether the construction of the conception is correct (first of all, the reasoning, and at the same time – reliability). Upon the discussing in detail particular shortcomings of the monograph, the conclusion is that the material provided is not convincing upon any of the previously mentioned aspects. Notwithstanding the declared aim, the work fails to provide a solid systematic theory. Although the method is proposed, too many exceptions are to be made. It is very important, that these exceptions seem to be formulated in a rather arbitrary way. The proposed method also lacks freshness, as it repeats and develops not only the previous publications of the author of the monograph, but as well ideas of other authors (particularly, of Karl Marx and Rudolf von Jhering). And the “achievements” of states which apply (for example, China) or which did apply the method are not inspiring at all (at least in the field of human rights). Evaluating the presentation of the material it was noticed that the work is penetrated with personal attitudes and contains factual mistakes, inaccuracies and other indecorums. Although there are some new, interesting elements, they do not prevail. As well, it is very important that the monograph raises additional ethical doubts, related with stimulation of intolerance and discrimination, which significantly reduces the versatility of outlook of the proposed conception (particularly the authentic application thereof). Presumably the majority of supporters of contemporary human rights concept will regard the conception of prof. Alfonsas Vaišvila as merely unacceptable.

ABDICATIO HEREDITATIS IN IURE POLONIA ZRZECZENIE SIĘ DZIEDZICZENIA W POLSKIM PORZĄDKU PRAWNYM.

Author(s): Radosław Zych / Language(s): Polish / Issue: 14 (2)/2016

According to the Roman legal principle: “Semel heres semper heres”. However, the renunciation of inheritance is one of the few institutions of inheritance law, which were not known in Roman law. There are situations in life in which the testator would like to deprive the shares in the inheritance a person with whom he lives in the best possible relations. When there are no grounds for disinheritance of the child, you can try to persuade them to renounce their inheritance. This article is about renunciation of inheritance in Polish legal order. The author will examine in this article the individual elements constructing this agreement. Disputes outlined in considerations may be helped for a discussion on the need for changes in normative regulations on research issues.

Aberratio ictus u krivičnom pravu

Author(s): Slađana Jovanović / Language(s): Serbian / Issue: 2/2018

This article discusses different legal solutions to situations referred to as „aberratio ictus“, in terms of its particular manifestation in criminal law. The concept of aberratio ictus, that can be translated as „attack gone astray“ is used to determine criminal responsibility of the offender, when his actions, directed to committing a specific offence, abberate from the expected course of events, resulting in harming an unintended object. Doctrinal solutions in this area variate between the theory of equivalence and the theory of concretisation, both of which impose exclusive arguments regarding the object of the intent. Thus, the first one emphasises the protection of abstract values, that results in punishing the offender for the completed, intentional offence, despite the aberration. On the other hand, the reasoning behind the theory of concretisation takes into account the relevance of the specific identification regarding the object of intent. According to this view, the offender is liable for the attempt towards the first object, accompanied with negligence liability for the result. It can be noticed that the legal nature of the protected objects appears as a decisive circumstance for determining criminal responsibility. Unlike the situations when the mentioned objects are not of equal values, where there is no doubt that aberratio ictus involves the responsibility consisting of the attempted offence, in addition to negligence towards the actual result, the equivalence of the attacked and harmed object, causes divergent opinions among different authors in legal theory. This affects not only the legal solutions in positive criminal law, which are mainly based on general rules, but also the judicial practice in this area, that is evidently not unique. Also, it can not be negated that these solutions are based on valuative criteria, giving the advantage to one value versus the other. After analyzing the application of suggested theories in practice and comparative legal solutions, the author pleads in favour of the attempt model, based on the theory of concretisation, suggesting the possiblity of its legal regulation in serbian criminal law. Its advantages are therefore attached to better concordance with practical demands and main principles of criminal law in general.

Aborcja i jej aspekty karne

Author(s): Grzegorz Leszczyński / Language(s): Polish / Issue: 1/2001

Doktryna i Magisterium Kościoła, opierając swoje nauczanie na Starym i Nowym Testamencie, od samego początku istnienia Kościoła jasno i precyzyjnie stawały w obronie świętości i nienaruszalności ludzkiego życia od samego początku jego istnienia, czyli od poczęcia w łonie matki aż do naturalnej śmierci. Współczesne spojrzenie na zagadnienie wolności człowieka i jego wynaturzone odniesienie do możności decydowania o wszystkim, co z człowiekiem jest związane, sprawiło, że problem aborcji, jednoznaczny i precyzyjny w nauczaniu Kościoła, stał się dla wielu ludzi nie do pogodzenia z nowoczesną wizją człowieka i świata. W takim kontekście niezwykle ważne wydaje się nam, by skupić naszą uwagę na zagadnieniach, które dotyczą skutecznego przerwania ciąży, a jednocześnie jego aspektów prawnych w prawie karnym Kościoła.

ACTUALITATEA PRINCIPIILOR HEGELIENE ALE FILOSOFIEI DREPTULUI

Author(s): Agata-Mihaela Popescu / Language(s): Romanian / Issue: 34/2018

C’est étonnant comme les principes hegeliennes de la philosophie du droit, développés par Hegel, dans un manuel qui a franchi l’aula de l’Université et s’a adressé, alors, dans le milieu du XIXème siècle, en même temps, au monde scientifique et au public, soient tant simples ! Il s’agit de l’ossature juridique de la réalité et de l’État, d’une série d’éléments de droit naturel et de science de l’État, que le grand philosophe les construise dans une architecture philosophique exacte, rigoureuse, mais subtile et profonde, spécifique de la méthode élaborée déjà dans la Science de la logique. Certainement, Hegel, dans son entier démarche, a en vue, aussi, une catégorie de confrontation entre des certaines vérités et d’autres vérités de même façon, qui sont répandues de autres parts. Mais dans le droit et dans l’éthique de l’État, la vérité est aussi vieille comme il est relevé dans la morale publique et en religion. Relire les principes de lesquels écrivait Hegel dans l’époque des lumières est, croyons-nous, bénéfique pour la complexité d’aujourd’hui du notre monde juridique et de ses interconnexions avec le reste de l’humanité.

Adalet Beklentimiz ve Adaletin Beklentileri

Author(s): Tuncer Namlı / Language(s): Turkish / Issue: 36/2018

This study tries to give a general framework about justice. For this aim, it discusses the etimological dimensions of the word of adalet, justice; and it is attempted to confirm the various senses of this word by referring some relevant verses in Quran. Following that, the concept is discussed in details in the relationship between Ethics and Law. In the second part of the article, it is referred to the unity of reason and heart in Quran, mentioning a justice in the Islamic sense. It takes some relevant verses contain particular judgements about justice to reach the objectivizations of it. It is concluded that justice is one of the most important parts of Islam and the consciousness, adding it is an eternal and ideal value.

Adresaci roszczeń z art. 446 Kodeksu cywilnego o naprawienie szkód wyrządzonych przez samobójcę

Author(s): Aleksander Czapski / Language(s): Polish / Issue: 16 (4)/2016

The article analyses the claims based on Article 446 Civil code in case of a suicide assassination. At the beginning it shows the issues of inheritance of property rights and obligations in case of death of a decedent. Next, it focuses on the possibility of inheritance property obligations of the suicide assassin towards the next of kin of the victim of the assassination. At the end it presents a solution for the case where claims under Article 446 Civil code are not satisfied.

Afirmatywna amnezja i konserwatywni crits. Kilka uwag o kondycji krytycznej myśli prawniczej w Europie Środkowej i Wschodniej

Author(s): Adam Sulikowski / Language(s): Polish / Issue: 1/2014

The purpose of this article is to analyze the causes and effects of two phenomena, which can be considered as characteristic of the critical legal discourse in Central and Eastern Europe. The first phenomenon is sometimes termed as „affirmative amnesia”. It consists of the abandonment of critical methodology by legal scholars who have dealt with the Marxist critique of the neoliberal law for the major period of their careers. The author tries to diagnose the cause of this phenomenon. The second of these trends lies in the fact that the critical tools that are used on the West mostly by left-wing thinkers, in Central and Eastern Europe are applied by conservative rightists.

Against the Input View of Legal Gaps

Author(s): Tomasz Zyglewicz / Language(s): English / Issue: 2/2019

The goal of this paper is to identify and criticize an intuitive way of thinking about gaps in the law, which I dub “the input view”. In this approach, legal gaps play the role of premises in legal reasoning in the sense that they trigger the application of, otherwise impermissible, methods of interpretation. The input view thus rests on a sharp distinction between the following two stages of legal interpretation: identification of a legal gap and filling it. The central motivation for embracing this view is to limit the scope of judicial discretion. I argue that the input view fails by its own lights by showing a class of cases in which it actually increases the scope of judicial discretion. My argument exploits the observation that, on any account of legal gaps available to the proponent of the input view, there will be cases in which a judge has discretion to say whether it involves a legal gap or not.

Alfredo Cruz Prados krytyka doktryny o prawach człowieka

Author(s): Piotr Tarabasz / Language(s): Polish / Issue: 3/2019

The human rights doctrine and in particular the Universal Declaration of Human Rights is undoubtedly an important step towards the search for an adequate formula, which would protect man and his rights. This statement points out that despite the efforts, which have been made in the last 70 years this formula, has not been effective. Many authors mentioned that and they were critical towards that idea, presenting many contradictions and problems related to that issue. Alfredo Cruz Prados is one of them. The objective of this article is to present the criticism of human rights by Alfredo Cruz Prados. Its perspective is a classical political philosophy. Thanks to this approach the author seems not to be entangled in modern philosophical terminology and its significance. It allows his criticisms to obtain certain freshness and novelty in relation to other proposals which criticize the human right ideas in philosophical literature. Alfredo Cruz Prados suggests we should reconsider the formula, in which we express the truth about human dignity and greatness, and we should again base it on the foundation of the classical political philosophy.

Allah Hakkı ve Kul Hakkı Arasında Hanefi Ceza Hukukunun Kamusallığı

Author(s): Muharrem Midilli / Language(s): Turkish / Issue: 1/2017

Modern criminal law is generally regarded as a public domain because it primarily aims at protecting general interests and has dominant vertical relationships between public institutions and the individual. This understanding corresponds to a certain extent in the Hanafi criminal law. According to Hanafi jurists, the fixed penalties such as adultery, theft, and drinking wine/getting drunk are applied only to the benefit of all people. The fixed penalty for the false accusation of adultery and the retaliation (kısas) protect the benefit of all people, as well as the the interests of individuals. The public authority is able to impose discretionary chastisements (ta´zîr) and administrative punishments (siyâsa) for the benefit of the society. It is his responsibility to investigate crimes, to prosecute suspects and to impose punishments. In all these steps, vertical relations are formed between the public authority and the perpetrator. On the other hand, the Hanafi criminal law has unique features such as the determination of public interests by the Lawgiver and the penalties imposed directly on behalf of individuals.

ALUZIVNO ZNAČENJE ZAKONODAVNOG TEKSTA (IŠĀRETU-N-NAṢṢ) U HANEFIJSKOJ PRAVNOJ ŠKOLI

Author(s): Šukrija Ramić / Language(s): Bosnian / Issue: 14/2016

This paper examines the Hanafi scholars’ approach to the alluded meaning (isharat al-nass) of a legislative text, and the implications of such an approach for the legal norms the Hanafis derived through ijtihad. The first part of the paper discusses the issue of possible textual indications (al-dalalat) within a legislative text, and then the concept of allusion in the Hanafi School from the linguistic and terminological point of view. Providing the examples of alluded meaning we show the way in which the Hanafis used alluded meanings in their argumentation. We also elaborate on the status of isharat al-nass in the Hanafi Madhab, and the way of giving preference in case of contradiction between isharat al-nass and ibarat al-nass. At the end of the paper we provide the conclusions derived from the study.

Amnesty for North Kosovo: Peace at Expense of Justice? Politically, Legally and Morally Justifying the Amnesty Law for North Kosovo

Author(s): Sean Parramore / Language(s): English / Issue: 4/2013

The paper examines the question under what conditions amnesty laws can be justified for the sake of peace, and what those conditions may imply in the case of Kosovo’s amnesty law directed at its northern break-away region. It appraises the moral justifications of amnesty laws, their international legal justification, and the political context and logic behind them so to test the hypothesis that peace at the expense of justice can be justified, in this case through Serbia’s and Kosovo’s integration into the European Union (EU). Amnesty laws are found to be balancing acts between political expediency, moral considerations and the international legal order. In North Kosovo’s case, the law risks undermining an already weak rule of law, exacerbating preexisting corruption, while failing to resolve tensions between its questionable political expediency, dubious morality and doubtful international legality.

AN EARLY CRITIQUE OF KELSEN`S PURE THEORY OF LAW: SLOBODAN JOVANOVIĆ ON THE BASIC NORM AND PRIMACY OF INETRNATIONAL LAW

Author(s): Boris Z. Milosavljević / Language(s): English / Issue: 3/2013

The keystone of Kelsen’s Pure Theory of Law is his doctrine of the basic norm. The basic norm is therefore the subject of Jovanović’s critique of Kelsen’s entire theory. According to Kelsen, the basic norm precedes the authority of a state, since it is positioned between the factual social force, which establishes the authority of the state, and the state. According to Jovanović, there is neither the law without a state, nor a state without the law; hence neither can Kelsenian legal norm, perceived as a norm prior to the state, be a positive legal norm, but an abstract, natural law norm. Jovanović discusses and criticizes Kelsen’s solution to the problem of the relationship between national and international law, which depends on the establishment of the basic norm.

Analele Universității București – Seria Drept (AUB)

Frequency: 1 issues / Country: Romania

In March 1939 issue no.1 of the Bucharest Law School Annals (the then name of the journal) was published as a series of quaterly booklets presenting the results of the scientific research conducted by the academics and the students, as well as reports on the most important events in the then legal and scientific environment. The publication aimed at creating and maintaining a “scientific movement useful to progress”. That aim has been preserved to the day, so the current “Bucharest University Annals – Law Series” (AUBD) publishes studies and research papers written by the academic staff and also by colleagues from other universities at home and abroad, young researchers, students and PhD students as well as information on legal topical isues, events organized by the Law School and the students’ results in international compatitions.

After a long period of time, the past 1948 period, when only a yearly issue was published, the journal resumed its quaterly publication in 2000. The members of the Scientific Board are well-known representatives of the European legal world. As of 2006, the papers published in our journal have been accompanied by abstracts in French and English, and, as of 2009 each article has been accompanied by a technical section including abstracts and key words to facilitate thematic search. Moreover, the contents of the journal, the abstracts and the key words are available on the journal website: drept.unibuc.ro/aubd.

As most of the articles are published in English, French, German or Italian, our journal is currently exchanged with almost 100 libraries and universities abroad.

Analele Universității de Vest din Timișoara - Seria Drept

Frequency: 2 issues / Country: Romania

The journal Annals of the West University of Timisoara – Law Series is a periodical comprehensive publication in law, biannually published, edited by the Faculty of Law, West University of Timisoara. The journal is structured according to sections that reflect the scientific work of several valuable professors in the field of private law and public law, plus the contributions of doctoral students or other young researchers.

Scientific events organized by the Faculty of Law, West University of Timisoara, as well as events marking the recognition of the scientific activity of its academic body, such as awards and distinctions, are also presented within the pages of the journal. Moreover, the journal’s content reflects the achievements of the Doctoral School within the Faculty of Law, West University of Timisoara.

The editorial team consists of professors specialized in the fundamental fields of law. A body of specialists ensures a comprehensive overview of the studies received for publication.

The journal is edited under the auspices of Universul Juridic Publishing House, one of the most prestigious law-oriented publishing houses in Romania.

Analiza predvidljivosti postupanja sudija – povratak mehaničkoj jurisprudenciji?

Author(s): Dragutin Avramović / Language(s): Serbian / Issue: 2/2018

This paper is about the roots of computerized predictive analysis of judge’s behavior, and it investigates problems which predictive analysis is facing today, its prospects, as well as advantages and limits of that method. The author is of opinion that major limitation in predicting behavior of a judge with broad precision is emotional shortage of artificial intelligence. Following the line of legal realism the author concludes that unpredictability of judge’s behavior, namely specific and unique feature of their personalities, makes legal outcome not completely certain. Algorithms are today based mostly upon mechanical jurisprudence and syllogistic reasoning as computers are “fed” by man. In the future it might become possible, due to dynamic development of technology and with possibility of developing self-learned artificial intelligence, that machines could once replace judges or at least predict rulings with a very high percentage of probability. But, if the law is ars boni et aequi, and that ancient Roman postulate is not yet validly contested, then the range of mechanical jurisprudence is still limited. Machine may be able to gain equality, as it is basically and originally a mathematical principle and operation. But it cannot reach sensitivity of the second, correspondingly important, or even more fundamental legal principle – what is good in general and in concrete case. Good is a value, having its specific loading and feature in every single case. This is something that the machine cannot properly recognize and measure.

ANALOGIJA U PRAVU. ZNAČENJE I UPOTREBA

Author(s): Žaklina Harašić / Language(s): Croatian / Issue: 3-4/2018

Conclusions by analogy are common in all areas of human activities, including law. Conclusion by analogy in law can be reduced prima facie to the same form as the conclusion by analogy in general i.e. two premises and a conclusion. However, it differs from analogical conclusion in general, because one premise in law conclusion must be normative (not only factual). Researches into analogical conclusions (in general and in law) have been done from many aspects and by a number of authors. There is a consensus only on an elementary form, and it is founded on the similarity of two objects (two features) in some characteristics, which draws a conclusion that these objects (features) are similar in some of their features. When it comes to analogy in law, there are four types of analogies: A statutory analogy (analogia legis), law analogy (analogia iuris), the inter legem analogy, and an analogy we use in law of precedents. These analogies are utilized to interpret legal norms and the loopholes in the law are closed (with exception of criminal law where there are no loopholes). This becomes both particularly interesting and disputable when it comes to legal principles.

Analýza systému vnitřních předpisů a řídících aktů v ozbrojených silách (Část 1.)

Author(s): Dalibor Nový / Language(s): Czech / Issue: 4/2013

Article analyzes the relation between legal and internal regulations and acts in public administration focusing on their hierarchy, quantity, liability in specific area of armed forces. There is wide range and amount of relatively autonomous service regulations and official channels (internal orders, guidelines, advices). Although any internal regulations have to be in accordance with superior sources of law, relation between legal and internal level is not clear. Article exemplary outlines, that consistent system of internal rules is based especially on running and immediate updates to meet harmony with legal code.

A-podmiotowość władzy – mit i rzeczywistość, czyli Zakład Ubezpieczeń Społecznych jako władza „suwerenna”

Author(s): Arkadiusz Barut / Language(s): Polish / Issue: 2/2015

The subject of the article is the analysis of a specific feature of contemporary political and administrative power. As analytic categories the author uses Foucaultian concepts of power discourses: sovereignty: the type of individualized power which strives for self-conservation (pre-modern type of power) and governmentality – the type of non-individualized power the aims of which are control and management of the population (modern type of power). Contemporary power – the bureaucratic power described by M. Weber etc. – seems to be the type of governmentality. But in this field emerges a new type of sovereign power legitimized by the discourse of governmentality – management and protection of the population. Its examples are analysed by G. Agemben i J. Butler indefinite detention in Guantanamo. In this articles, the author focuses on symptoms of the new type of sovereignty in day-to day government action – the practice of the polish organ of compulsory social insurance – Social Insurance Institution (Zakład Ubezpieczeń Społecznych).