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

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

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most of which are related to the specific conceptual framework of law based upon common sense knowledge and (sometimes) outdated psychology.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 Our assessment is that most of the current concepts of criminal law are directly related to outdated psychological and neuroscientific theories, and that the content of those concepts should be updated according to the newest scientific findings while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

Applying Confirmation Theory to the Case against Neurolaw

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

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

Freedom, Responsibility and Jurisprudence

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

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

Retributivist Theory of Punishment: Some Comments

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

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

Релацията „право – икономика“: светогледни измерения на правното явление в условия на глобализация и дигитализация на световната икономика

Author(s): Victor Ivanov / Language(s): Bulgarian Issue: 3/2019

The worldview dimensions of the law phenomenon increase their importance to the research of legal scientists and in the training. The „law – economy“ relationship is one of the most essential elements in the formation and renewal of law and of structures and forms of government, as well. Both transition from national to supranational economic structures and deepening digitization of the economy are of paramount importance. These processes revolutionize the legal phenomenon, and this leads to the necessity of revolutionizing the legal sciences, including the General Theory of Law and the General Doctrine of the State. It is the task of legal theoreticians to reconsider the transition from national state legal continuum to regional and global legal-power structures. It defends the understanding that, in the context of a digitizing and globalizing economy, special and incredible efforts are needed by the emerging global civil society in order to create in time new democratic forms and mechanisms in line with the spirit of the Fourth Industrial Revolution. Jurists face the challenge of building a modern desacralizing worldview in defence of universal values and ideals.

CHILD PROTECTION UNDER GDPR

Author(s): Dana Volosevici / Language(s): English Issue: 2/2019

The “datafication” of society requires clear, harmonized and strict measures in order to ensure the effective protection of the children, direct consumers of an important number of information society services. The paper aims to present on overview of the applicable provisions of the General Data Protection Regulation in the field of child protection in case of data processing.

Концепт закона в творчестве Н. В. Гоголя

Author(s): Igor’ A. Vinogradov / Language(s): Russian Issue: 2/2020

The article for the first time, raises a question about one of the profiles of Gogol’s activity as a “satirist”, a denouncer of morals. In his writings the author inevitably follows the laws of the Russian Empire, more than a hundred of volumes of which were published during his lifetime. It is emphasized that Gogol’s desire to devote himself to justice, dated back to his school days, he carried through all his whole life. He considered his writings, as well as the legacy of Homer, Derzhavin, Fonvizin and Griboedov, as educational, “legislative” for contemporaries. The writer created every his writing, by his own admission, as a support for the “truthful laws” of the State and Church, the unity of which was determined by the peculiarities of the legislation of the Orthodox State. The work consistently traces reminiscences of The Complete Collection of Laws of the Russian Empire contained in the first Gogol’s series Evenings on a Farm near Dikanka, the collection Mirgorod, St. Petersburg novels, The Government Inspector, Dead Souls, the comedy The Gamblers, etc. The government decrees were also mentioned in Gogol’s works, for example, Anti-Superstition laws, alcohol laws, wine tax and beverage production laws, tax arrears laws, “souls inspection” decrees and “documents audit”, prohibitive decrees on bribes, moneylending, harlotry, gambling and so forth. The connection of the “legislative” problems with the laws of Gogol’s poetics, their unity in the works of all genres and all periods of Gogol’s creative activity is emphasized.

Homo homini covidus sau despre virus, restricții și alți demoni

Author(s): Ionela Cuciureanu / Language(s): Romanian Issue: 14/2020

There is a pandemic with catastrophic effects worldwide, a population more or less and / or correctly informed, traffic restrictions are lifted due to the lifting of the state of emergency and an alert state is established, which in turn involves a number of restrictions. This whole framework, which can be explained by the nature of the events, seems to have a less explicable side, namely the inflammation produced in the public space by the adoption of these restrictions through Law no. 55/2020 on some measures to prevent and combat the effects of the COVID-19 pandemic and the normative acts issued in its application. Ah, and somewhere in the background, the Constitution is running, like a TV left open and to whom no one is paying attention any longer.

ПОСТМОДЕРНІЗМ ЯК МЕТОДОЛОГІЯ СУЧАСНИХ СМИСЛОВИХ ВІЙН

Author(s): Mikhail Petrovich Trebin,Oleksandr Yurievich Panfilov / Language(s): Ukrainian Issue: 1/2020

Problem setting. The information war is not a united one, it includes three different aspects - the information and technical war (aimed at cyber resources), the information and psychological war (designing to make an opponent decide in the way necessary for an attacking side) and the semantic war. Researchers note that, in contrast to others, the semantic war has far goals that lie even beyond the limits of the life of a generation. Unlike facts that are constantly changing, meanings remain valid for a long time as they reflect the model of the world. The semantic war deals with interpretations based on the existing model of the world. Interpretation processes, being more complex, become more important than just informational ones.Thus, the problem of searching for the methodological foundations of conducting semantic confrontation, changing the value system, and the world picture of the general public of the society is becoming more and more topical.Recent research and publications analysis. The issues of certain aspects of semantic wars are in the centre of attention of such researchers as Yu. Gromyko, A. Dzholos, R. Marutyan, A. Pelin, G. Pocheptsov, Yu. Solomonov and others. However, the methodology of semantic warfare remains insufficiently studied although this can help freely “enter” the “territory of meanings” of the victim of aggression, change the value system, and the picture of the world.Paper objective. The goal of this paper is to clear up the methodological foundations of modern semantic wars.Paper main body. The article attempts to determine the methodology of modern semantic wars. It is justified that postmodernism is one of the methodologies that can be used to explain the phenomenon of semantic weapons. Postmodernist discourse greatly differs from other philosophical directions in terms of topics, conceptual apparatus, and ideological foundations, especially in the context of the formation of a modern information society.It is determined that several basic ideas can be distinguished within the postmodern discourse, these ideas being successfully used in the present semantic confrontations. First, this is the textualization of the world. The world should be understood as a text. Second, since everything is understood as a text, the subject exists within the text. Moreover, the subject is absorbed by the text. A person appears as a set of different identities that are tied to one or another local-cultural condition or socio-political context. Third, postmodernism is characterized by disillusionment with the ideals of the Enlightenment. In particular, the Reason is not believed in any more, causal relationships and absolute values are denied. Fourth, the postmodernist discourse is principally anti-fundamental, it is not interested in substantial unity and ultimate (metaphysical) causes but in decentralized, scattered sets - differences. Fifth, an important place in the modern postmodern discourse belongs to the theory of simulacrum.A simulacrum is a product of simulation, which replaces the real world with an imaginary one but which is more acceptable for a person as a real one. A simulacrum produces (simulates) a similarity but only as an external effect. Its internal principle is the difference, due to which it eludes of identity, similarity, likeness. It destroys the sample and multiplies the copies so that it is not possible any longer to tell where the copy is and where the original is. Simulacra give rise to the phenomenon of masses. Masses are defined as the silent majority, a black hole absorbing social aspects. The masses gravitate toward a physical and static form, which is simultaneously non-social and supra-social.Conclusions of the research. It is concluded that postmodernism brings about new ways of understanding social and political reality since it offers own type of rationality. Based on the postmodern discourse, a characteristic basic semantic toolkit arises as a feature of semantic wars: the simulation, that is the creation of simulacra – missing reality images that lack originality and that are superficial, hyper-realistic objects that do not have any reality behind them; reinterpretation of events and phenomena of reality; the coverage of not just one segment of the population but the general public; more interest that does not focus on a fact but on its rethinking, the creation of an apparatus for rejecting own “incorrect” interpretations.

Collective Memories, Institutions and Law

Author(s): Adam Czarnota,Justyna Jezierska,Michał Stambulski / Language(s): English Issue: 3/2019

This paper aims at explaining the concepts of collective memory, institutions, politics, law, as well as relations between them. By means of a short explanation of a network of mutual relations between these notions, we want to show how law and collective memories interact and how the relation between them is formed. At the same time, we see three modes of relations between collective memories and law: 1) past before the law, 2) memory laws and 3) law as collective memory. The first view consists in evaluating the past under a court trial. The second one in creating legal rules which promote or demand commemoration of a specific vision of the past. The third approach perceives law itself as institutionalized collective memory.

Instrumentalization of Law in the Context of Memory Policies in Central and Eastern Europe after 1989

Author(s): Filip Cyuńczyk / Language(s): English Issue: 3/2019

The main goal of the article is to conduct case studies of CEE memory policies introduced after the fall of communism and to present them as an interesting field for examining the instrumentalization of law. The primary research question is: Do several case studies of several memory policies implemented in post-communist states help to examine the theoretical concept of the instrumentalization of law? In this paper, I intend to show the hidden potential of such studies. I present some of the specific elements of new constitutionalization attempts in CEE, which included narratives of memory in several constitutions in the region. I also show their relation to the concept of instrumentalization of law. Finally, I describe some political acts of instrumentalization of law in the field of collective memory.

Articles 55a and 55b of the IPN Act and the Dialogue about the Holocaust in Poland

Author(s): Katarzyna Liszka / Language(s): English Issue: 3/2019

Relations between the Holocaust, memory, and law are constantly reconceptualized. In the second decade of the 21st century there is no clear consensus on the way the Holocaust, memory, and law are or should be interconnected, especially in Central and Eastern Europe. A striking example of the new dynamics of those tensions is an amendment to the Act on the Institute of National Remembrance, which in January 2018 inserted Articles 55a and 55b. The paper states that these controversial provisions (later withdrawn) should be understood as specific memory laws in response to the transnational memory of the Holocaust and the non-consensual dialogue on the Jedwabne pogrom in Polish society. The paper shows the law as a result of a certain dialogue, a voice in the dialogue, and an attempt to limit this dialogue – as well as the effects of such limitation. The paper adopts Leszek Koczanowicz’s conception of dialogue, Natan Sznaider’s description of the transnational Holocaust memory, as well as the idea of the future-oriented ethics of never again, and Eviatar Zerubavel’s concept of a conspiracy of silence in order to frame the context and meaning of the emergence, short life, disappearance, and traces of the law. Although these articles “refract” criminalization of the Holocaust and genocide negationism, understood in the context of Polish historical politics, they are themselves close to a specific form of denial, i.e. denial of the Jedwabne massacre. A recollection of the Polish memory law casts a shadow on the future, as a threat exists that the law might appear again.

Znaczenie językowe normy prawnej w poznańsko-szczecińskiej szkole teorii prawa w świetle pragmatyzmu analitycznego

Author(s): Wojciech Rzepiński / Language(s): Polish Issue: 1/2019

The author first reconstructs standpoints adopted by the scholars from the Poznan-Szczecin school of legal theory regarding the linguistic meaning of a legal norm. This reconstruction allows certain dilemmas related to the adoption of analytic philosophy in the theory of law to be visualized. In the next section of the article, attention is paid to the influence of Kazimierz Ajdukiewicz’s philosophy on the understanding of linguistic meaning within the School. The problem of linguistic meaning may be explained by the definition of equivalence, the core of which is a set of directives of a specific language. Finally, the author comments on the theses of Robert B. Brandom’s analytic pragmatism and the application of the latter to legal theory of Maciej Dybowski. Analytic pragmatism extends semantic research through an attempt to understand practice-related conditions.

The dangers of controlling memes through copyright law

Author(s): João Paulo Capelotti / Language(s): English Issue: 3/2020

Intertextuality plays a great role in the production and comprehension of various forms of humorous expressions, such as parodies and memes. The latter often rely on previous facts, images, videos, statements etc., to express a certain comic idea. Nowadays, memes and parodic videos are not just made by comedians, but also by ordinary people on social networks, mostly using images, videos and gifs found in search engines like Google. However, attempts at regulating the use of such materials, particularly from the point of view of copyright, threaten the freedom of this sort of humorous expression. The article discusses a case from Brazil in 2017, when the then President Michel Temer tried to stop the unauthorised use of his image in the creation of memes, stating that the pictures in the Presidency’s website were available for journalistic purposes only, and any other use needed the government’s consent. This strange situation, that could give the president the power of approving the satire made at his expense, was itself the subject of various memes, which ultimately forced the government to step back. The article then discusses similar risks of a directive recently approved by the European Parliament, which, under the flag of protecting copyright, may have a controversial chilling effect in the creation of memes and satiric videos.

Book review: Milner Davis, Jessica & Roach Anleu, Sharyn (Eds.). (2018). Judges, Judging, and Humour. Switzerland: Palgrave Macmillan.

Author(s): Rachel L. DiCioccio / Language(s): English Issue: 3/2020

CONSTITUTIONAL TRADITIONS – THE BULGARIAN PERSPECTIVE

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

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

Hungary’s Christian Culture as Subject of Constitutional Protection

Author(s): Balázs Schanda / Language(s): English Issue: 23/2020

Since 2018 the Fundamental Law of Hungary (the Constitution) has provided for the protection of the Christian culture of Hungary as an obligation of all organs of the State. The Fundamental Law does not commit the Hungarian State to Christian religion or to Christian culture in general, but specifically to the cultural tradition of the country. Despite the recognition of the cultural role of Christianity, the Constitution remains neutral with regard to religion and the freedom of religion is recognised. The constitutional provision discussed in this study, i.e. Article R) para. 4, expressly identifies the culture of Hungary as a culture shaped by Christianity. Culture was born from faith, but faith cannot be born from a historic legacy and even less from a constitutional provision. Thus, the aim of the constitutional legislator was undoubtedly to place a stronger emphasis on the identity of the nation.

Znaczenie filozofii Immanuela Kanta w kształtowaniu polskiej myśli filozoficznoprawnej XX wieku

Author(s): Anna Kryniecka-Piotrak / Language(s): Polish Issue: 2/2020

The legacy of representatives of the 20th-century Polish philosophy of law thought still requires systematic studies and closer presentation of its ideas, for the ground that it is a source of interesting but sometimes not yet discovered or acquainted scientific concepts. An important part of it are concepts formulated under the influence of Kant's thoughts, taking into consideration that their authors are subject to various inspirations, often referring in their works to more than one philosophical system. Kant's philosophy is a source of inspiration for the formulation of original concepts of innovative sense, in which its assumptions are modified and creatively developed. It is significant that it significantly contributed to the shaping even such standpoints of view that presented a decidedly critical attitude towards German philosophy, mainly due to the alleged idealism and speculative nature. It turns out that Kant's philosophy in the works of representatives of Polish 20th-century philosophy of law thought constitutes an important contribution to concepts concerning the man’s place in society and in the global community, as well as the relationship between individuals and the role of positive law in shaping them. It confirms conviction that it is necessary to undertake research on law from an anthropological and axiological perspective, leading to the formation of the subject of research in the philosophy of law in a specific way. It also led to the consolidation of the view that there is an absolute imperative to respect humanity in every individual, becoming the basis of individualistic thinking and pacifism. The aim of the presented research is therefore a comprehensive presentation of the multidirectional influence of Kant's philosophy on the shaping of Polish 20th-century philosophy of law thought.

Problematyczność stosowania metafizyki do pozytywizmu prawniczego na przykładzie tezy o społecznym źródle prawa

Author(s): Marcin Kanon / Language(s): Polish Issue: 2/2020

The aim of this article is to present a legal positivist social source thesis in the context of classical metaphysical reflection. Author uses the method of analysing the source texts and abstracts theses that can be considered as metaphysical. Metaphysical theses divide into existential and essential. They are expressed directly by an author or possible to reconstruct. Reasoning was based on convenience that universality of metaphysics should be considered temporally. The thesis about the evolution of ways of understanding reality, along with the development of mankind, is one of the cardinal assumptions of positivism in general. Based on this historiosophical rule, August Comte draws further conclusions about a possible modern philosophy for the future. The denial of metaphysics leads to cursory, perhaps unconscious, acceptance of the theses that have already been developed in the history of philosophy. The reflections are essentially focused on the issue of ontological status of society. Its understanding determines the understanding of social facts and seems to have an impact on social source thesis. The main part of the reflection is placed in a historical context. It enables to examine some aspects that are difficult to consider nowadays. One of the conclusions is that metaphysics to which positivism opposes is dominant in 19th century philosophy, but in general only one of many schools of thought. Since there is no specific literature on that matter, author signalize problems considering them generally.

Социалният институт в социалната теория и практика (теоретико-методологичен аспект)

Author(s): Yuri Shubnikov / Language(s): Bulgarian Issue: 2/2020

The article tries to present the social institute as a phenomenon of social theory and practice, following the author's understanding of this public construction, based on a synthesis of existing methodological and theoretical views. It advances a theoretic understanding on the formation of abstract concepts about the institute, its generic features, and functions.