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The article shows the importance of the language of judicial interpretation as one of the types of legal interpretation. The basic features of the language of judicial interpretation prompted the author’s definition.
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In this paper author presents the achievemenets of Leon Petrażycki and his novelty in various areas of humanities. Petrażycki is recognised as forerunner of deontic logic, and also as creator of the principle of adeqacy, ennoblement of law, pluralistic vision of law. He exhibits primacy of legal norms over moral norm, and he establish scientific legal policy. Additionaly Petrażycki is treated as classic of the sociology of law and also as the artificer of emotions.
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The paper aims to study the work of Leon Petrazycki and analyze modernUkrainian scholars’ opinions on Petrazycki’s scientific achievements. This studyfocuses on Petrazycki’s work, his psychological theory, in particular, in viewof our own perspective on the law and within the framework of our theologicaland sociological theory, which considers the law as a social life phenomenonand regards moral imperative of the Almighty God as the basis of law. Everycivilization communicates moral imperative through sacred writings (the Ten Commandments in Christian Bible, six hundred and seven rules in Jewish Torah,seventy-two rules in Muslim Quran). It is within the framework of this moralimperative that the society and the state develop the law.The paper addresses the modern absurdity and at the same time antinomy oflaw, lying in the fact that there is more and more law in the society but less andless law in life of an individual due to the fact that states rapidly upscale rulemaking,but laws are becoming less accessible to an individual. This study drawson conceptual issues of Petrazycki’s theoretical heritage, fundamental principlesof his psychological theory, as well as connection between law and morality,described by Petrazycki, which are the spiritual heritage of society. The mostimportant issues of Petrazycki’s work, in our opinion, are studying the nature oflaw, balance of emotion and intellect, official and intuitive, desirable and actualcomponents in law, as well as subjective and objective law, law policy and power.The paper reveals that assessment of Petrazycki’s work in modern Ukrainian legal studies is ambivalent: from sharply critical (Prof. P. Rabinovich), compliant with Russian (O. Timoshina (St. Petersburg)) approach and critical yet positive perception of Petrazycki’s psychological theory (S. Maksymov, O. Merezhko, M. Kuz, O. Stovba) to admiration for Petrazycki’s genius, whose work was ahead of his time (I. Bezklubyi, N. Huralenko, V. Dudchenko, O. Rohach, M. Savchyn, V. Tymoshenko). Thus, the research findings suggest that Petrazycki’s work belongs not only to the past, but also to the present and future of jurisprudence, sociology, psychology, economics. Further in-depth analysis of Petrazycki’s heritage will contribute to more accurate diagnosis of urgent legal issues in social development of modern Ukraine, real assertion of personocentrism as a postulate of contemporary theoretical jurisprudence and guidelines for public authorities, as well as practical solution to many controversial scientific and legal issues.
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Artificial intelligence (AI), thanks to pop culture, is widely identified with robots or humanoid machines that take control over humans. Even though we might be feared of the new technology or the questionable social and ethical issues that arise from it, AI is developing rapidly which makes it a priority in the cognitive economy. Consequently, processes or services performed without any help from humans can no longer be considered as a part of the distant future. According to public opinion research from last year, conducted for IBM by NMS Market Research, 92% of Poles have heard of AI and 8 out of 10 expect it to be used more broadly. Efficient legislation can ensure the correct and regulated development of new technologies whilst inefficient legislation or the complete lack thereof can halt and even completely cease further research, or make the usage of AI significantly difficult in both social life and the economy. This paper is an attempt at placing national legislation concerning AI in the context of the legislation of the EU and other countries. I will attempt to answer the question of whether it is possible to introduce into legislation a technology whose usage and full potential are yet unknown. Is AI, in terms of the law, a scientific fantasy or can it be regulated? I have analysed soft law on which some general regulations and future law recommendations are based. Currently, AI is only restricted by single provisions as there are no regulations that can be used in a complex manner in the area of new technology.
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The purpose of this article is to look at the topic of homosexuality in ancient Israel’s legislation and to analyze the specific regulations on this issue. The issue of homosexual acts appears clearly twice in the Torah, in Leviticus 18:22 and 20:13, in both cases alongside other intimate practices prohibited by Law. Both texts are discussed in the article together with their context, and then possible interpretations – the traditional ones, and those proposed in recent years. The latter try to demonstrate that the content of biblical legislation is not clearly opposed to homosexual relations (unlike how it was interpreted in the Jewish and Christian traditions). The article additionally – in the discussed context of the legislation on homosexuality – analyses two biblical texts possibly dealing with male sacred prostitution (Deut 23:18-19 and possibly also Leviticus 18:21).
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This study focuses on the nature (Part II), functions (Part III) and legal effects of soft law instruments (Part IV) both in the national and international system. Its aim is to construct a theoretical and practical framework for legal compliance (in particular in the form of: guidelines, communications, compliance programmes, best practices, etc.) – in the discourse of national and EU courts. Courts do not convert soft law into hard law, but subject it to judicial interpretation and/or recognition. Recognition and binding force are used in cases where the judiciary clearly interprets – that is, agrees or disagrees with the content of the non-binding acts, or treats their content implicitly but in a circular manner – that is, without express reference to soft law instruments in the judgment, but rather more to moral, ethical norms and customs. The dynamic changes that are taking place in social life today are influencing changes that are related to the formalization of the sources of international law. Soft law should not be considered a ‘normative disease’ but rather, a symbol of the present day and a product of necessity. The strength of the state depends on the coherence of the law and the environment of non-legal regulations created, in particular, by large corporations, and which exert a significant influence on entities that conduct economic activities. Multicentricity, multisource, multi-level structure and the power of ‘soft law’ lead to the transformation of the law and changes in its functions. The aim of the article is to present the problem of applying soft law in practice, to draw attention to the ‘fictitious’ assumption that it has no binding force (in legal theory), but has a strong impact and fulfills many important functions in practice, mainly in economic law – hence its special place and role in the legal system.
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It is a widespread opinion that modern jurisprudence was shaped first of all by the tradition of Roman law. In this article author tries to explain why ancient Greek legal thought should be equally important. As an example he considers the evolution and the different meanings of the concept of nomos. Four issues are presented in this paper. First, nomos in the political philosophy of Carl Schmitt and Giorgio Agamben. Secondly, nomos in one of Pindar’s poems. Thirdly, the distinction between physis and nomos made by the sophists. Fourthly, thesmos, nomos and psephisma in the legislative practice of Athenian ekklesia.
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The state, under the Westphalian order, was both the creator and product of international law which determined its position as the central actor of this system. The norms of international law defined the normative content of the internal security regime, where state security was identical with security as such in international relations. The reality that laid the foundation for this logical syllogism has been subject to gradual transformation that had its climax in the early decades of the 21st century. The states, previously holding monopoly of using force in international relations, which allowed for prevention of wars by means of intergovernmental agreements or maintenance of peace through institutionalized intergovernmental cooperation, lost their exclusive authority to use force. Stipulating ‘non-war’ by means of an (intergovernmental) international treaty became impossible since the non-state actors who apply force pursue counter-systemic goals and reject the international (and internal) order based on the rule of law. The state sovereignty, whose significant albeit not exclusive referent was autocracy and total power, has been transformed from the title of claim to cease the violation by the state into the personal right to protection (vested in an individual or minority/people/mankind in general).
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The strongest version of the conscience-statutory law conflict, known from antiquity, is found in the events of the twentieth century. The effects of ethically outrageous political or normative decisions made, for example, by the Nazis or the Soviets, caused huge moral dilemmas. The international community’s account for these decisions and their consequences after World War II inspired the building of a system of human rights in the spirit of international iusnaturalism. This system, respecting the freedom of conscience in the well-known triad of freedom of thought, conscience, and religion, also favoured the positive recognition of the human right to conscientious objection. Recognition of the right to conscientious objection ran from the positive and legal recognition of the freedom of conscience, through the theoretical and legal separation of the right to conscientious objection, to the recognition of this right in a legal institution, known as the conscience clause, which takes the form of a provision allowing the possibility of failure to perform an action due to the so-called motives of conscience. The process of gradual recognition of the right to conscientious objection in the legal order, understood in this way, is defined in this study by the term “institutionalisation of the right-conscience conflict”. This institutionalisation takes various forms and does not always lead to the provision of sufficient legal protection to those wishing to exercise their right to conscientious objection. However, legal recognition of the possibility of non-application of the law in force due to conscientious objection always generates a number of challenges for the coherence of the legal system. In this work, a research task was undertaken using the dogmatic-legal method to answer the question which challenges for the legal systems of Continental law result from the institutionalisation of the law-conscience conflict? The article is divided into two parts, analysing the theoretical-legal and practical-legal consequences of the institutionalisation of the right-conscience conflict and the resulting challenges for the legal systems of Continental law.
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The present paper offers a quantitative and qualitative analysis of constitutional references to Christianity. An examination of binding basic laws of individual states allowed the authors to determine the scale of references to Christianity and to systematize and typologize these references. As assumed in the study, “references to Christianity” include both direct mentions of Christian principles, values or heritage as well as implicit ones, i.e., references to God understood in accordance with monotheistic Trinitarianism and to individual Christian denominations, their followers and churches. Due to the fact that Christianity not only has a religious, but also a historical and cultural dimension, its references in the constitutions, in principle, do not deny the ideological impartiality of public authorities or lead to confessionalisation of the state. Neither do they violate the rights of followers of other religions and non-believers. It is an exaggeration to perceive constitutional references to Christianity by non-Christians as allegedly socially alienating and excluding. The constitutional legislator deciding to distinguish Christianity in a constitution is expected to be guided by the will of the sovereign. However, incorporating references to Christianity into basic laws should not serve as a tool of social engineering for proselytic purposes.
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The author examines two fragments of the Digest of Justinian – D. 19.1.31.2 by Neratius and D. 6.2.9.4 by Ulpian, where it is considered the problem regarding the individualization of one of two buyers who has to have legal protection with privilege compared to the other buyer, when the thing is bought by two different persons but from the same seller or by two sellers who are not owners. The author makes a research on the case with the sale by two sellers, because there are plenty of different opinions of the Roman jurists, which are explained not at the same way by Roman law scholars. The presented article is directed to the clarification of the terms and notions because of the essential heterogeneity of the opinions.
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The article concentrates on a fundamental issue related to the effect of the EU non-discrimination principle. The preliminary research assumption was that the main purpose of extending the scope of its effectiveness, which can be observed in the jurisprudence of the Court of Justice, is primarily the wish to protect victims of discrimination, and only then to eliminate the situation in which discriminating entities avoid responsibility in this respect. It is also worth considering the consequences of the concept adopted in the case-law, namely that the EU non-discrimination principle has both vertical and horizontal direct effects. As a result, the first part of the article presents the development of the jurisprudence concerning the direct effect of the non-discrimination principle. Then the groundbreaking ruling in the case of Cresco Investigation GmbH (C-193/17) is discussed in detail. Finally, the analysis covers the reasons, scope and possible effects of the approach according to which the EU non-discrimination principle can be invoked directly in national courts also in the context of disputes between private parties. The final conclusions indicate possible further development trends in terms of the direct effect of the EU non-discrimination principle.
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The Fatwā-house, which was within the body of Meshihat in the Ottoman Empire, gave answers to the questions posed to it by focusing on the Hanafi sect and the preferred fatwās of this sect for centuries. These questions and answers were also duly recorded. In this study, based on The Record for the Legal Responses of the Supreme Fatwā Office, which is registered at records numbered 378 in the Meshihat Archive of the Istanbul Mufti, one of the records containing the answers given by the institution. It is an attempt to create an imagination about the scope and sphere of influence of the fatwā activity in the last period of the Ottoman Empire. Accordingly, in the last thirteen years of the state, Fatwā-house has been the addressee of questions from individuals, state and private institution directors, societies, ministries and the Grand Vizier. While some of these questions came from the provinces within the Ottoman borders or from the countries that had an administrative ties with the Ottoman Empire, some of them were submitted to the Fatwā-house by the Muslims of other states from the lost lands or simply because the caliphate center was the official fatwā organ. At the records, there is also a record of the questions coming from muslims who are Ottoman citizens but residing in other countries. Looking at the subjects, it was determined that most of the questions were asked about foundations. In addition, the permissibility of obtaining interest by bank facility or depositing money in the bank, the establishment of modern schools and whether the ways to create resources for these schools are permissible, whether teaching in Latin letters is possible, the provision of life insurance, the importance of cleanliness in the fight against cholera, the fight against innovations (bidʻas) in mosques. It is seen that questions on different issues, from issues such as whether the wife of the lost (mafqud) can be separated by the judge or not; to the issues of whether the fulfillment of judgment can be regarded as the end of the judgment or not. As it is mentioned in some fatwā records at the record book, it is obligatory to decide on fatwā and its fulfillment in the Ottoman Empire with the most authentic and preferred view of the Hanafi sect. The last two fatwā questions mentioned above are handled as examples of giving up the act with the will of the head of state, with the preferred fatwâs discussed in this article. It is only possible with the will of the head of state to make a decision with an opinion other than preferred fatwâ or an other opinion out of the sect. According to the first example, some of those of the citizens of other states outside the Ottoman Empire came to the Ottoman lands for reasons like trade etc. and married to Muslim women there and then left them suffering. This was also true for the wives of men who went to wars and did not return. Although the drawbacks of the Hanafi sect's preferred view, that one should wait until the age of ninety, one hundred, one hundred and twenty, or until the death of their peers, were resolved by appointing a regent from other sects, continuity could not be ensured in this practice either, finding people has not always been possible. For this reason, in the time of Shaykh al-Islam Hayri Efendi, a statement of change was prepared and submitted to the will of the sultan. In the issue of whether the signature of the head of state can be counted as the end of the judgment, another subject in which the will of the head of state is applied, the stages of abandoning the preferred view can be followed much more clearly. In the case of the dismissal of the judge or the expiration of the term of office before the execution of the judgment, especially in the distant provinces of the state, in the case of the judge's dismissal or the expiration of his term, according to the preferred view of the sect, which was based on juristic discretion, the closure of the cases took many years. It is seen that the judgment reached by analogy was submitted to the will of the sultan, with an article added to the script regarding the prepared procedure of reasoning, although there is no preferred view since it is the most suitable opinion for the interests of the people and the necessities of the century due to the increase in complaints. Effective from the time it was approved by the head of state, the execution of the sentence is no longer a requirement for the trial to be completed. The changes in the provisions of these matters also show that, although it was important for the Ottoman State to comply with the preferred view of the Hanafi sect - as in the previous Shaykh al-Islams' fatwās in the form of ma'ruzat - it was considered more necessary to look after the interests of the Muslims and different opinions were enacted and put into practice.
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The Book and the Sunnah are the two main sources of Sharʿī science. These two sources are based on narration which requires an absolute certainty, and this makes the reports, especially the mutawātir reports, important for Sharʿī sciences. Many people were involved in the transmission process of the Sunnah and the Book; therefore, Islamic scholars remained loyal to the technical concept “mutawātir reports” which is used in logic and is not open to doubt in terms of credibility. This is particularly important for the science of kalām, which deals with matters of faith. On the other hand, in the science of fiqh, which deals with the practices of the Muslim individuals such as worship and procedures rather than the matters of faith, only the reports that the believer will accept, rather than those that everyone will approve, are sufficient. In this context, as per the science of fiqh, it is sufficient to form a dominant opinion, rather than an absolute certainty as in the science of kalām, for acting upon reports. Some factors, such as the acceptance of conjecture sufficient in the matters associated with fiqh and the low number of mutawātir reports on fiqh matters, also affected the fuqahā’s understanding of certain knowledge. In the context of transmission of the Sunnah, fuqahā partially changed the nature of the concept “mutawātir reports” by going beyond the technical understanding of tawatur. The most important change made by the fuqahā in the nature of mutawātir reports was the inclusion of the phenomenon “sened (chain of transmission)”, which is used to ensure credibility to ḥadīt̲h̲ s, in the understanding of tawatur. So much so that while the number rather than the qualifications of the people who convey the reports is important for the credibility of the mutawātir reports in the science of logic; in the determination of mutawātir sunnah, the number of the narration channels which consist of just and fair-minded narrators was taken as a basis in line with the hadith “Whoever ascribes to me what I have not said then let him occupy his seat in Hell-fire.” Even some methodologists valued the justness and fair-mindedness of the narrators so much that they included the famous reports in the scope of mutawātir reports, even though the first layer was ahad, due to their trust in the narrators in the later layers. However, in technical sense, for mutawātir reports, the qualifications of the narrators or who they are is not important at all. On the contrary, any person from a different religion, sect or disposition can take a role in the transmission of mutawātir reports. However, there is no place for fasiq narrators, let alone non-Muslims, in fuqahā’s concept of sened-centered mutawātir reports. Spiritual mutawātir is one of the subjects affected the most by this new understanding of tawatur based on isnād (reporting the chain of transmission). Normally, spiritual mutawātir is the agreement of the reports, conveyed in different texts by a large number of people who cannot agree on a lie, on a common meaning. However, fuqahā interpreted spiritual mutawātir as ahad ḥadīt̲h̲ s with different chains of sened reaching a certain number and denoting the same meaning. What makes these two reports different is that the number of narrators assures the credibility of reports in the first one whereas the trust in the justness and fair-mindedness of the narrators does in the second. As a matter of fact, it is not possible to talk about such a spiritual mutawātir if the trust in the justness and fair-mindedness of the narrators who convey the ahad reports is damaged. This approach of spiritual mutawātir was used by the mutakallimūn as much as by the fuqahā. However, they used this approach of mutawātir mostly for matters that are evidenced by the Sunnah but not associated with the essentials of religion, such as Shafa'ah (intercession), Hawd al-Kawthar (Pond of Abundance), Ru’yat Allah (seeing Allah), and imams’ being from Quraysh. Thanks to this new concept of tawatur, Islamic scholars included many ḥadīt̲h̲ s that are normally out of the scope of the technical definition of mutawātir reports, in the scope of spiritual mutawātir, and thus provided a credibility to more ḥadīt̲h̲s.
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Marcus Gavius, alias Apicius, born around 25 BCE, the author of the culinary work De re coquinaria, before his death travelled to the coast of Africa in order to obtain large shellfish that were to surpass those he had known up to then. This expedition was recorded by the sophist Athenaeus of Naucratis (Athenaeus Naucratita) (2nd / 3rd century AD) in Deipnosophistae 1.7b. Disappointed, Apicius, however, did not find satisfactory culinary products. In the Book IX entitled: „Seafood“ „De re coquinaria“ of Apicius we find the recipes for the preparation of dishes based on various seafood, such as: spiny lobster, European lobster, eyed electric ray, squid, cuttlefish, octopus, oyster, all kinds of shellfish, sea hedgehog, clam, Atlantic bonito, tuna, bullhead, salted fish, catfish and sea barbel. And although it is not known exactly what was written byApicius himself in the treatise, and what was added by a later compiler at the turn of the 4th and 5th centuries AD, , there is no doubt that the sea and the seafood played a great role in the life of Apicius. Was the journey of the Roman writer and culinary expert at that time something extraordinary? What kind of shellfish was Apicius cocus optimus looking for? Which legal regulations had the greatest influence on the sea journeys of an ancient gourmet - these are the questions that the current paper seeks to answer.
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Administration has always been full of dynamics in time and space, and the period of Roman conquest in Dacia is a very important one for the national history of Romania but also of Europe. Apulum, became in Roman times, the largest city in Dacia, the location being on the place where the city of Alba Iulia is located today. Here the residence of the general government of the three Dacians was established and it was a strong administrative center but it also played a rolein the Romanization of the population. Also in Apulum we find the 13th Legion of Gemina, an elite legion, in the Roman Camp of Apulum.
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In a democratic regime, political parties are relevant actors in the constitutional architecture, undergoing both a constitutional and a legal regulation. The Constitutional Court goes further and, in its jurisprudence1, considers political parties as the main actors in constitutional life. The emergence of parties materializes the fundamental right of association and they are intended to define and express the political will of citizens. The Constitution qualifies pluralism, in general, and political pluralism, in particular, as a condition and guarantee of constitutional democracy. Political pluralism is seen in the doctrine2 as “a fundamental element of the process of conquering and exercising of power, of social leadership”. Political pluralism is also a supreme value, an essential value of society, guaranteed by the constitutional text in Article 1 paragraph 3 and Article 152, thus being intangible3. The legislative changes from 2015 allowed the appearance on the Romanian political scene of several local parties, together with the national ones, established either at level of locality or at county level.
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Between the 26-27 October 2018, at the initiative of the “Dunărea de Jos” University of Galaţi, the Association of Scientific Researchers in the field of International and European Law (Italy) and the “Acad. Andrei Rădulescu” Legal Research Institute of the Romanian Academy, at the headquarters of the “Ugo Spirito e Renzo di Felice” Foundation in Rome, was held the international colloquium “Romania and Italy. The common culture of the memory of the past 100 years. Memory and identity in the Romanian-Italian dialogue: symbolic spaces, legal, historical and philosophical issues”; the event was dedicated to the Centenary of the Great Union of 1918 – the most important historic moment of the Romanian people. In the scientific papers and interventions held on the occasion, various important aspects of the Romanian-Italian relations were approached.
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Jus est ars boni et aequi. When one thinks about the social phenomenon we now call the justice system, one will probably remember instantaneously this phrase. However, the concept has known hundreds of interpretations, bases on a proportionally larger number of values. These values have varied from society to society, from one age to another. If one excepts that such notions are constantly evolving, while preserving a rather solid core, than, in this day and age, one would expect to receive a clearer definition for the idea of justice, at least from the study of the modern schools of legal thought. The aim of this paper is to find the possible meanings that justice receives in today's European legal systems. It has been structured in three parts, meant to highlight and than harmonise the main plans of this research. The first section is dedicated to finding the main understandings of the notion of justice, as they are presented in the manuals of legal doctrine. The second section seeks the meanings of the same concept in the constitutional documents of 48 countries, pointing out the emerging patterns. The third and last section analysis the possible meanings of the notion if justice in the findings of the first two sections.
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