We kindly inform you that, as long as the subject affiliation of our 300.000+ articles is in progress, you might get unsufficient or no results on your third level or second level search. In this case, please broaden your search criteria.
The article defines the basic postulates of the ethical concept of civil law and shows their methodological importance for disclosure of the fundamental properties of law and the patterns of its functioning. A conclusion is made regarding the dialectic nature of the transition from moral consciousness to the legal one.
More...
The article shows the role of intelligentsia in the process of justice administration formation during Modern times. Much attention is paid to such features as gradual restriction of a community powers, centralization and strengthening of the power of judicial authorities, consecutive criminalization of the acts, formation of ideology of justice of the adopted judicial acts in the society and absolute confidence in possibility and inevitability of any case being solved fairly. Empirical material is presented by links to the concrete lawsuits considered in courts of Great Britain during the designated historical period.
More...
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.
More...
The aim of the article is to present two opposing visions of the common good (value) in the history of political and legal doctrines. Such outline of extreme positions allows the author to assess the wide range of doctrinal differences in particular epochs and to impose the principles of the rule of law expressed in art. 2 of the Constitution in the historical tradition derived from the ancient republicanism and political and legal thought of the Middle Ages and which absorbs the postulates of modern liberalism, republicanism and conservatism, based on the democratic model.
More...
Some legal historians believe that there is a fairly uniform legal tradition in Europe. That conviction is brought about by the research of Roman law’s reception in different countries and its function for canon law. Hence, Roman law is considered to be an actual, historical foundations of different legal orders. In that sense, Roman law takes over a function, already attributed to it in Middle Ages, of ratio scripta. In content it is similar to natural law. What is more, constant reference to the uniform legal tradition can lead to anachronistic opinions on political situation in Europe. In the article I venture an opinion that Roman law should not be a valid reference point for a construction of legal order in Europe – despite the obvious reasons why it could be.
More...
Is it possible that Nussbaum’s capability approach and Finnis’s natural law theory have anything in common? We usually do not think ethical pluralism and an account of objective good to be members of one family of theories. Nevertheless there is a set of ideas that Nussbaum and Finnis apparently, and surprisingly, share. Both authors elaborate a list of values which plays a central role in their theory. Careful examination of these lists provides us with many similarities in terms of concepts, terminology and interpretation. Finnis and Nussbaum both employ the ideas of practical reason and intuition, or self-evidence, to reject the academic requirement for theoretical proof of normative approach in morality, philosophy of law and political theory. In this way, they both seek to secure their claims to universality.
More...
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.
More...
The article shows the heuristic possibilities of «legal life» concept in the ontological aspect. Sense measurements are considered as the basis of the measurement-effects, which together form the structure of legal life. It is shown that the main measurement-legal phenomenon of life is a legal entity. That it forms various ways of interpreting the legal life and advocates a legal condition for life. Phenomenological approach to determine the legal entity as a legal person, which has its own of law consciousness and is able to take an active part in the legal life legal communication.Legal awareness is defined as a multifaceted phenomenon, the core of which is the will to into practice. Analyzed the relationship between the characteristics of an entity, such as «carrier be justice» and «figure to be legal». It is proved that a phenomenological approach allows us to represent the legal norm as a form of meaningful communication between the legal entity and the legal givens of life. Discloses a polymorphism of legal norms through its substantial manifestations – logo, Nomos, ethos. It is shown that the concept of the rule of law reflects the diversity of the legal life and involves a set of values. Examined the legal judgment as the basis of existence of legal norms. Their role –a representation of the given legal life and to ensure communication between the subjects of law. Legal judgments can be formal, logical constructions, and also take the form of legal entity. The first type judgment accordingly relates to performative (declarative). The second type – motivating judgment (their characteristics are existentiality and inter subjectivity). The possibilities of social experience as the measurement-phenomena of legal life. Firstly, in a repeat of the social experience of resistance expressed manifestations of legal life. In turn, the correlation with the specific pattern of conduct is a prerequisite for the identification of the subject of law. Secondly, in the context of the social experience of legal life is presented as a multi-level system of norms and values, based not only on ra- tional but also irrational basis. Third, the social experience is understood as a form of unfolding scheme of activities in space and time.It is concluded that the measurement-events are part of the content of the legal concept of life. They allow you to define the legal life as a set of legal phenomena, which are due to activity of the subject of law, related to the social experience and embodied in legal norms and values.
More...
The subject of this article is an analysis of the idea of popular constitutionalism formulated in American philosophy of law. The starting point for the author is to identify the lack of legitimacy of contemporary government, and consequently its product – the positive law. The solution to this problem is supposed to be the idea of deliberative politics, based on social discussion and responsive law, created through the activity of many subjects, reflecting differentiated identities and ways of seeing the world. Deliberative politics and the responsiveness of law may, however, mean either a social reality, real discussion on law and politics, or a regulatory idea which the activities of elite bodies may advance. In American philosophy of law, the idea that popular constitutionalism was to respond to the postulate of legitimisation of the law by providing the public, and in particular, representatives of ’new social movements‘ such as ‘the civil rights movement‘ in the 1960s, direct participation in its creation and application, was an expression of concern also expressed by the authors of the left in the face of the law-making judgments of the Warren Court. The reformulation of this idea, made in particular by Bruce Ackerman, or its identification with American Supreme Court’s jurisprudence, is an expression of a change in understanding or even deconstruction of fundamental political and legal ideas such as representation and democracy. The consequence is the detachment of the concept of the People from a relation to a particular empirical community. This process appears as an aspect of the ideological phenomenon that goes beyond the American context, i.e. legitimacy, according to the criterion of realizing the slogan of protection of human rights, of elitist bodies. The examples are: the conceptions of Pierre Rosanvallon, and Dominique Rousseau. The author of the article points out the dangers of this movement. The radical shifting of the meaning of words causes irrationalisation of public discourse, and the legitmisation of the role of played by constitutional court as a defender of human rights can exclude all possibilities of the criticism of its lawmaking.
More...
The article concerns the concept of punishment as an act of communication. Some retributivsts (i.e. ‘positive’ retributivists) believe that punishment communicates a censure. The article’s central proposition is that the act of communication is, in fact, strongly connected with the criminal responsibility. Furthermore, responsibility should not be identified with punishment. The so called positive retributivists claim that in order to fulfill communication purposes, offender have to be punished. However, punishment seems to be conceptually independent of the process of moral communication. It is shown that communication is linked with the very idea of criminal responsibility and the censure should by communicated through responsibility. Therefore, the article offers the view of responsibility as a complex process. Responsibility is an important social practice which in many cases can substitute punishment, particularly in its communicative aspect.
More...
On 28 March 2018 in the Aula of New Bulgarian University in the presence of students and professors of the Law Department a public lecture dedicated to the issue of some specific features of the US judicial system was presented. The lecturer was Hon. Elizabeth Stong who is at present U.S. Bankruptcy Judge for the Eastern District of New York1. The event has been organised by the Law Department of New Bulgarian University together with the Bulgarian Institute for Legal Initiatives.
More...
There are a lot of things in constitutional legal order in Bosnia and Herzegovina that attracts our attention. It has already been pointed out by many authors and many times that both letter of B&H Constitution and its implementation (what in american constitutional and legal literature is called constitution in action) have a numerous strangeness. In the countries that have constitution in formal sense it can be understood and tolerated in some extent the need of political actors to have a letter of domestic constitution interpreted in a way that correspond to their political interests in their everyday mutual political campaign. Such understanding and toleration are acceptable since, in final, their opinion is not legally binding. But, when the court does so, the court which have a highest place ih judiciary, such appearance is a true dangerous and every well meaning man should be worried for that. Exactly such question is a topic of this paper. It is so due to the fact that a way on which Constitutional Court of B&H decided in a case from 2000 (on constituionality of the peoples in B&H) unmasked readiness of some judges of that Court to put their functions in service of a realization of certain political interests. There is no ground neither in the letter nor in the spirit of B&H Constitution for the decision they took in that case, and today it (this case) is few bespoken here in B&H. Decision of European Court on Human Rights in case Sejdic-Finci (from 2009) is also subject of this paper. By this decision the European Court illegally put itself into position of institution which wants to make a constitutional revision in an unconstitutional way, just as it was done before by the Constitutional Court of B&H in the aforesaid case from 2000.
More...
The current article wishes to analyze one of man’s fundamental rights, that of the respect owed to one’s private life; this right is regulated by both the European Convention on Human Rights, as well as in the Romanian Constitution and the Civil Code. The latter is a distinct regulation. Once the New Civil Code was passed, Title II of the First Book offers an entire chapter dedicated to the respect owed to the human being and its inherent rights, a chapter in which the right to a private life is as important as the right to life, health, integrity, the right to dignity as well as the respect owed to a person after its death. The present article involves a three sided analysis, regarding constitutional law, civil law and criminal law, as we can’t leave out the criminal aspects generated by the disrespecting of this right. Thus, the lawmaker found appropriate to incriminate crimes as trespassing, violation of professional secrets, violation of private life, disclosure of professional secret.
More...
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.
More...
The purpose of the article is to investigate in theoretical and practical aspects of the peculiarities of the formation of the rule of law in modern Ukraine. The methodology is based on a complex combination of general scientific (analysis, synthesis, analogy, etc.), philosophical (dialectical, hermeneutical) and special legal (regulatory and analytical, comparative legal) methods. The scientific novelty of the work lies in the systemic disclosure of institutional and noninstitutional factors for the development of the rule of law in Ukraine, highlighting the problematic issues that arise at the present stage of national state-building. Conclusions. The scientific discourse about the features of the realization of the essential features of the rule of law in modern Ukraine unfolds in the following areas - ensuring quality of judicial and law enforcement activities, clear separation of powers between the branches of government and its structures (in order to avoid duplication, dual subordination), raising the level of legislative work in the Ukrainian Parliament, adherence to the principles of the rule of law in all areas of public life no and so on. Generally, it can be stated that in modern Ukraine the rule of law is only being born, and the compliance with the principles of its functioning in domestic legal relations is not yet systemic. The development of the institutions of the rule of law is an integral part of the entire political system in the country. That is why there is a need to reform the judicial branch of the government, law enforcement agencies, lawmaking procedures, taking into account the best foreign examples. One of the ways to improve the quality of legislative work is the creation of bicameral parliament in Ukraine, which should ensure more thorough consideration of the draft laws, representation of the regions, and which will serve as a forum for finding a compromise on the strategic directions of the country’s development. As the experience of the countries with stable democratic traditions shows, for the development of the rule of law, it is not enough to adopt quality laws; important is their perception and implementation by all subjects of social relations, which have a developed legal awareness and legal culture of democratic quality. To raise the level of legal recognition and legal culture of Ukrainian citizens, we propose to create a system of legal education and upbringing that would be supported by the state and civil society. To ensure legal education and upbringing legal policy of the country, a number of consecutive steps should be foreseen.
More...
The purpose of the article is to highlight culture as a means of knowledge of law through a description of the interrelation of these social phenomena. The methodology of the research is based on the complex use of phenomenological; hermeneutical and systemic methods of scientific knowledge, allowing to comprehensively consider social phenomena. The scientific novelty of the research carried out is to prove the necessity of cognition of law through its connection with culture: only a social and cultural paradigm will allow an adequate understanding of the essence of law and strengthen its regulatory capacities, since law is the cultural heritage of the people, and therefore the gnoseology of law should be ambivalent, including both rational, and non-rational means. Conclusions. The current transitive state of domestic law is largely stipulated by the consideration of law as a phenomenon that is artificially created by public authorities (there is an identification of the law and law), to which the people are not directly related. The development of national law in the direction of enrollment into the Western legal culture necessitates the understanding of law as a phenomenon of culture, which is created with the participation of the people, reproduces its identity, mentality, values, culture. Culture is a factor in the pluralism of understanding of law by different peoples and determines the relativism of legal values. It is the social and cultural paradigm that allows us to know the true nature of law, to strengthen its regulatory capacities. The epistemology of law should be based not only on rational means but also on non-rational once – feelings, emotions. There is a need to supplement the conceptual and categorical apparatus of domestic jurisprudence with the term ―legal civilization (culture)‖.
More...
The paper starts from the following question: How can the problem of conversion be analysed in legal terms? Hence, on the background of the Jews’ conversion to Christianity during the Romanian Holocaust, the present paper focuses only on the legal situation. It argues that conversion represents a personal liberty protected by the human right to freedom of conscience. As long as this assertion is demonstrated, it follows that the state should respect this human right in its legislative activity and, correspondingly, the subjects ought to have the moral duty to disobey the legislation, whenever it violates the human right to freedom of conscience. The present paper analyses Decree-law no. 711 of 18 March 1941, that amended Law no. 54 of 22 April 1928, regarding the cults. That was the Decree-law responsible for banning the conversion of the Jews to other religious cults. The reason behind this amendment was stated by General Radu Rosetti, the Minister of Cults in Ion Antonescu’s government: “The ethnicity of our nation must be preserved from mixing up with Jewish blood. Nowadays, the Jews have the possibility to hide their ethnical origin by moving from the Mosaic cult to our national religions.”
More...
The Romanian superficial stipulations regarding the national heritage and the objects implying images create conflicts regarding the evaluation, the protected value, the public versus private and the protection of all those involved. A debate and a project regarding the Heritage Code is still a debate and a project without practical consequences.
More...
Unlike the previous regulation, in the current Code of Civil Procedure there are de facto rules that should give a solution to the situation in which the child refuses to leave the debtor, even if he was entrusted with a decision of the court to another person. . However, the effect of the rules in question is uncertain and the legal mechanism is inconsistent, despite the fact that it is supposed to work in compliance with the principle of the superior interest of the child. The present article does not aim to provide an absolute solution regarding how to proceed in this situation, but only to analyse some issues that have virtually no solution, as well as how they could have a positive effects, based on the existing legislation, starting from the premise observance of the principle of the best interests of the child.
More...
Since children require a specific protection with regard to their personal data, they receive special attention from the European legislator in the framework of Regulation (EU) 2016/679 as they may be less aware of the risks, consequences and safeguards concerned and their rights in relation to the processing of personal data. That is why this paper aims to analyze the provisions of the General Data Protection Regulation referring expressis verbis to the processing of a child's personal data, without overlooking some aspects regarding the processing of personal data revealing the religious beliefs of a child as well as the processing carried out within the future online school catalog. We will consider not only the provisions of Regulation (EU) 2016/679 and the national legal framework, but also the guidelines issued by the former Article 29 Data Protection Working Party and subsequently endorsed by the European Data Protection Board. However, it remains difficult to assess to what extent the children of today who will become the adults of tomorrow will be satisfied with the way their personal data have been used prior to the time when they can express their consent to the processing operations.
More...
