Aborcja i jej aspekty karne

Author(s): Grzegorz Leszczynski / 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.

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

Author(s): Šukrija Ramic / 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. Milosavljevic / 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 Avramovic / 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 Harašic / 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.

Andrzej Walicki, Zarys myśli rosyjskiej od oświecenia do renesansu religijno-filozoficznego, Wyd. Uj, Kraków 2005, 862 strony.

Author(s): Ireneusz Stanislaw Grat / Language(s): Polish / Issue: 1/2008

Review of: Andrzej Walicki "Zarys myśli rosyjskiej od oświecenia do renesansu religijno-filozoficznego"; Publisher: Uj, Kraków 2005, 862 pages; by: Ireneusz S. Grat

Antoni Kość (1949-2011)

Author(s): Tomasz Barankiewicz,Jadwiga Potrzeszcz / Language(s): Polish / Issue: 2/2012

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).

Apolityczność w prawoznawstwie. Kryzys idei a zjawisko populizmu

Author(s): Adam Sulikowski / Language(s): Polish / Issue: 3/2018

The topic of the article is the current crisis of the idea of the apolitical nature of jurisprudence and the relationship between this crisis and the phenomenon of populism. In the first part of the study, the author puts forward a thesis on the post-theological and liberal character of the idea, reconstructing its genealogy. The next part discusses the impact of first-wave populism (1930s and 1940s) on the status of the title idea, focusing primarily on authoritarian – Nazi and Stalinist – populisms. In the next part, the author diagnoses the causes of the current crisis of the title idea after the period of its demo-liberal reappointment.

Aporia Phila z perspektywy teorii aktów mowy

Author(s): Bartosz Biskup / Language(s): Polish / Issue: 1/2018

The aim of this paper is to analyze the „possibility puzzle” presented by Shapiro (2011) in the context of the debate between conventionalism and non-conventionalism in speech act theory. Conventionalism claims that for every speech act there is a pattern (convention) which determines its illocutionary force. To perform a felicitous speech act is to fulfil necessary and sufficient conditions for this particular speech act. Non-conventionalism criticizes the view that for every speech act there is a conventional pattern and hidden conditions, which are to be fulfilled. This view maintains the conventional thesis for the so-called strict conventional speech acts (e.g. performatives), but negates using universal quantifier for so-called communicative speech acts whose aim is, in short, to express an intention and force someone to act by virtue of this intention. As in (Shapiro 2011), Phil said: in order for someone to have the power to make, change and apply rules, there has to be a rule that empowers someone to do so. This objection concerned „The First Legislator” only from the conventional perspective on speech acts. If it can be maintained that The First Legislator’s speech acts may be non-conventional, then Phil’s argument misses the point. Finally, I will emphasize that only lawyers analyze „the very first speech acts” whereas for philosophers, the problem of e.g. „the very first question” is less absorbing.

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.

Apylinkės teismo nutartis dėl raidės „W“: atvejo analizė precedento doktrinos aspektu

Author(s): Johanas Baltrimas / Language(s): Lithuanian / Issue: 89/2015

The article deals with the issue of Lithuanian case-law on the matter of spelling in personal documents with letters from non Lithuanian alphabets or disregarding rules of Lithuanian language grammar. Question of spelling foreign names in documents is of big political im-portance, since it has received a lot of public attention, in last few decades there were over 20 unsuccessful attempts to pass laws which lay down relevant regulation. Particular focus of research is drawn upon Lithuanian case-law, where recently a judi¬cial precedent occurred, which conflicts with earlier rulings. In a few cases the Lithuanian Supreme Court ruled for Lithuanian-only spelling in documents, but in 2015 a court of first instance (Vilnius county court) delivered a contrary ruling. It did not receive any appeals, therefore, came into force. Such status causes ambiguity when deciding, whether spelling of names in documents not in Lithuanian is prohibited by law. The main objective of the article is to present relevant reasons for this question as far as it concerns the doctrine of judicial precedent. Accordingly, relevant statutory law and legal doctrine are evaluated. This led to finding that, following the conventional view, earlier case-law provides legal principles which should be currently applied. On the other hand, legal principle from the recent precedent could be binding if there was an adequate basis to overrule previous precedents. In the instant case such basis can be found in the fact that the legislature unjustifiably delayed the enactment of relevant rules and this caused a legal gap. Such unjustifiable delay may give courts the power to fill the legal gap by way of interpretation. However, presence of these conditions for overruling are arguable and the most appropri¬ate solution in this case is for the legislature to pass the law, which lays down the rules for the issue in question. Demand for such law is increased by the fact that current legal circumstances create uncertainty and may cause infringements of the right to equal treatment by the law.

Arab customary law and the modern Western idea of restorative justice

Author(s): Ewa Górska,Jan Bazyli Klakla / Language(s): English / Issue: 1/2017

Arab customary conflict resolution and the alternative Western approach to dispute resolution are both the result of a similar way of administering justice – a restorative justice paradigm. Thus, we argue that it is not a new or a strictly western concept given that its fundamental values or even structures have existed in the customary laws of different cultures, like Arab culture, for centuries. In this article, we compare Western restorative justice institutions with the Arab customary conflict resolution process (sulh) used in contemporary Palestine.

Argument „semantycznego ukąszenia” a teoria prawa Jerzego Wróblewskiego

Author(s): Adam Dyrda / Language(s): Polish / Issue: 1/2010

Ronald Dworkin once criticized legal positivists for that their theories are founded on a mistake called “the semantic sting”, which claims that legal philosophy, as a silent prologue to every decision of law, cannot be only a semantic account to the word ‘law’. The article presents Dworkinean argument (and its most influential critique of Herbert Hart) and examines whether Jerzy Wróblewski’s legal theory (in its descriptive layer similar to the theory of Herbert Hart) is susceptible to “the semantic sting”. Finally, the answer given is based on a particular solution: Jerzy Wróblewski’s concept of rationality of legal decision appliance. The answer is in accoradance with argumentation of soft positivists, such as Herbert Hart or Jules Coleman, and is based on the acceptance that, even if Dworkin’s argument is meaningfull, it still does not apply to the theories presented by the soft positivists. The controversy whether a particular theory is “semantically stung” is de facto a dispute over a proper methodological approach to legal theory and a relation in which such a theory remains to interpretative jurisprudence of Ronald Dworkin. In this case we can treat Jerzy Wróblewski’s theory as a metatheory, which deals with theoretic disagreement over the grounds of the law, while deciding the case.

Argumentavimas remiantis teisės principais: atkuriamasis ir plėtojamasis būdai

Author(s): Johanas Baltrimas,Mindaugas Lankauskas / Language(s): Lithuanian / Issue: 85/2014

In his dissenting opinion in Lochner v. New York case, O. W. Holmes famously stated that general propositions do not decide concrete cases. There are many others who claim similarly. Among them F. Schauer states that such concepts as liberty, equality do not strongly determine answers in legal questions – although not totally vague, they require additional premises in order to be applied in concrete cases. This study, among other questions, focuses on what these additional premises are when it comes to application of legal principles. Besides this, a goal is raised to seek out what views on application of legal principles are dominating in jurisprudence. Perhaps the most important topic in the study is the matter of two perspectives to reasoning with legal principles. One of them is linked with judicial restraint, it is based on a view that contents of a legal principle can be discovered through earlier cases where it made impact on decisions of judges or legislators. The other perspective is based on argument that positive law (the official and explicit legal texts) is not sufficient for proper dispute resolution and this is where legal principles come to aid – they are the artery through which law is supplied with moral, practical reasons. Based on these views the reconstructive and developmental method to apply principles are contemplated. The former is perceived as analysis and comparison of earlier cases where the disputed principle had impact on judge‘s or legislator‘s decision. Among factors which ought to be evaluated are similarity of these cases to the case which is being dealt with and how widespread is the principle (the variety of these cases). The developmental method is characterized as relying on factors which lie beyond boundaries of formal explicitly expressed law (practical arguments, arbitrator‘s inner sense of justice, etc.). Proper application of this method inter alia can be ensured by the principles of J. Rawls‘ inner position, by arbitrator‘s dissociation from peripheral inappropriate, subjective factors. Evaluation of these methods leads to conclusion that the reconstructive method contributes to legal certainty, easier foreseeing of judicial decisions, includes lesser risk of impartiality and similar factors, so it is superior when there is no or minimum need to develop the law. However, developmental method has the advantage of ensuring material justice and practical outcomes of judicial decision when it comes to cases where there is a strong need to develop the law.

Argumenty religijne w procesie ustawodawczym w Sejmie Rzeczypospolitej Polskiej VIII kadencji

Author(s): Grzegorz Maron / Language(s): Polish / Issue: 4/2019

The article discusses the issue of using religious arguments by deputies while considering bills at the sitting of the Sejm. The author critically assesses the socalled doctrine of exclusivism, which postulates a total exclusion of religious arguments from political discourse. Next, he justifies the thesis that appealing to religious reasons by deputies in the course of parliamentary work is not contrary to the constitutional principle of worldview impartiality of public authorities. Finally, based on the empirical study, he presents quantitative and qualitative characteristics of the operationalization of religious rhetoric in the legislative process in the Sejm of the 8th term. It turns out that MPs of all political groups appeal to religious arguments and they do it rather seldom. The state of affairs in which members of liberal and leftist parties themselves – identifying themselves with postulates of the exclusivist doctrine and even regarding them as a legal requirement – use religious argumentation, testifies to their political opportunism and ideological interpretation of the constitutional principle of religious impartiality of public authorities. The author postulates the avoidance of instrumental treatment of religion in the political debate.