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

Author(s): Aleksander Czapski / Language(s): Polish / Issue: 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.

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

Author(s): Ireneusz Stanisław 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.