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Cast system in India is a social structure that has been developing since the decline of Maurya empire in 3rd century BC. One of its inseparable consequences is the phenomenon of untouchability – social exclusion. Due to colonialism and the introduction of capitalism to India cast system lost its economical foundations which were guarantee of elementary respect between untouchables and higher castes. Those changes led to new forms of discrimination. Because of that independent India in the Constitution enacted in 1950 in art. 17 abolished untouchability and its practice in any form. The struggle of legal system with social exclusion embraced also penal regulations and reservations of places in the Parliament for the members of lower castes. After 65 years of affirmative action we can assess how effective that policy is and how it affected the whole society. Despite of the fact that the condition of untouchables among other castes is getting better nowadays, legal regulations should be criticized. It is not possible to eradicate the phenomenon of untouchability without eliminating cast system in total. The improvement of lower castes’ welfare is the result of the decomposition of cast system in Indian culture and not legal restrictions.
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This article treats about legal nature of compensation right to which people evacuated from former territory of Poland after 2nd World War are entitled. By citing regulations defining forms of fulfilling repatriates claims, author indicates multiplicity of views and discrepancies in assessments of compensation right law nature, which in effect leads to lack of unified position on this matter by both representatives of doctrine and judicature.
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During the long history of legal theory legal norms were often construed as commands. This gave rise to the so-called command theory of law propounded not only be legal positivists but also by adherents of natural law. The author attempts to discern different meanings this theory may have and then offers some critical observations regarding this theory, especially those given by Hans Kelsen and H.L.A. Hart. In the conclusion the author states that the problem has been somewhat overrated, and that the conception of norm as a command or as a logical proposition depends not upon some inherent characteristic of the law but upon the model each author uses.
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Condiction refers to an action that originates in Roman Law and was used for the restitution of a thing found with the defendant unjustifiably (sine causa). The thing is commonly acquired by the defendant on the basis of plaintiff’s action which had unjustifiably transferred ownership over the thing to the defendant (datio). Pursuant to condiction, the defendant is liable for the acquired thing and the scope of his liability is determined as of the time of acquisition and not of the time of raising the condiction. Hence, the defendant is obliged to restore what he initially acquired and not what he possesses at time the condiction is raised. As opposed to the Roman Law’s condiction, in modern law of unjust enrichment the defendant is also liable for the property benefit that he sine causa acquired in any way, and he is obliged to compensate the quantum he possesses at the moment when the claim is raised. Although the scope of liability under Roman Law’s condiction and under contemporary unjust enrichment is established according to different criteria sometimes the same solution may be reached if defendant’s good faith (bona fides) is taken into account.
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Many Americans and outside observers assume that the United States of America was founded upon a cluster of principles known as the “Rule of Law”. Indeed, Articles I, II, and III of the United States Constitution of 1789, purportedly establish the rights and authorities of three co-equal branches of government: the legislative, executive, and judicial branches. Adherence to the Rule of Law in the United States, however, has a much shorter history.During the 18th, 19th and early 20th centuries, the President of the United States – leader of the executive branch—often ignored or contradicted decisions by the judiciary when it served their ambitions. Monumental architecture and actions by early Justices on the U.S. Supreme Court also testify that the judiciary was the least respected branch in the U.S. government. Not until 1954 with the landmark U.S. Supreme Court decision of Brown v. Board of Education and its vigorous enforcement by the President of the United States – nearly 200 years after America’s founding – can the United States accurately be described as a nation that consistently follows the Rule of Law. With the repeated questionable and unconstitutional tactics deployed by the Trump administration, however, this period of the Rule of Law in the United States is waning. To prevent its continued decline, the Rule of Law in the United States (and elsewhere) must be vigorously protected and nurtured. For in the end, the Rule of Law is merely an idea, a belief that must be acted upon to be realized. When not constantly protected and cultivated, the Rule of Law can and will wither.
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When revolutions were carried out in the field of law in the Republican Period, firstly a Civil Code was drafted. This effort, not considered revolutionary enough, was interrupted by the rulers of the period. In 1926 a revolutionary method was followed and translation of the whole Swiss Civil Code was decided on. Thus, translating the laws of another society was preferred rather than taking into account the experience and values of Turkish society. This has caused some criticism. While making legal reforms in Turkey depending on the Treaty of Lausanne, statutory advisors brought from Europe were benefited and this has brought about the claims that concession and commitment were offered to European states in the Treaty of Lausanne. As the Turkish Civil Code (TMK) was translated only by a commission consisting of jurists, the social, cultural and economic aspects were not discussed in detail. The text of the translation was accepted collectively without consideration of the articles one by one in the Grand National Assembly of Turkey (TBMM).The language used in Turkish Civil Code had a lot of Arabic and Persian words and errors were observed in translation.
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The paper describes the problems of interpretation of normative legal acts. The situation when court decisions are defined by the non-normative sources, as well as by the normative sources that do not apply to the judicial matter, has been considered. It has been revealed that the modern legal science often uses reference sources to interpret the legal provisions. The aspects of morphological, syntactical, and logical interpretation of the civil legislation acts have been investigated. The specifics of using the static and dynamic interpretation have been discussed. Thus, the common grounds (principles) of the legislation have been singled out. Based on the obtained results, it has been concluded that the problem of interpretation of normative legal acts, which was urgent in D.I. Meyer’s times, is still relevant. The tasks of correct law interpretation set in the 19th – 20th centuries have not been fulfilled. Therefore, it has been suggested to define the rage of the most important tasks, to determine the vector of scientific and empirical studies, to draft the stages, and to find the efficient technique for achieving the success in solving the issue.
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Often, legal ideas are transplanted between legal systems. This can be seen not only in colonial contexts, as is evidenced by the almost global relevance of ideas that originated in English Common Law, but was also visible in particular during the last centuries when Japan and China imported rules from German criminal and private law, respectively, into their domestic legal systems. One of the best known – and most unusual – features of German private law, concerning the transfer of ownership and the abstraction and separation principles, was in turn also the result of a legal transplantation, albeit a rather imperfect one. Using literature research methods, this text aims to show that transplanting legal norms between societies, while often practical, can at times lead to confusing and unintended, results – in particular when the context in which the norm was created is not fully understood.
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The matter of development of the eugenic movement Has already been described in the Polish science. A lot has been written regarding both the law of the Third Reich, as well as the history of the Polish eugenic movement. However Polish project of eugenic laws have never been thoroughly analyzed from the legal point of view, despite this topic being an object to commentaries in the Interwar period. Up to this point no one attempted to analyze how strongly did the Nazi eugenic concepts influenced the Polish projects of eugenic laws. According to some authors such inspirations are easily noticeable. Thus the thesis that the German law strongly influenced the Polish projects shall be subjected to a critical analysis. The goal of the paper is to compare the German eugenic law with Polish concepts on that matter, especially projects made by Leon Wernic. Due to the use of the comparative legal analysis in the historical perspective, it was possible to indicate the similarities and dissimilarities between the Polish projects and the Nazi laws: Law for the Prevention of Hereditary and diseases of offspring; the Nuremberg Laws; the Law for the Protection of the Health of the German People. The Polish drafts include the Preventive Eugenics Act published in 1934, the drafts of four eugenics laws published in 1935; project of the law: ,,On the inhibition of reproduction of dysgenic individuals” created by Wernic; draft of the law ,,On the inhibition of undesirable reproduction” made by Witold Łuniewski and ,,Eugenics Laws” prepared by Bohdan Ostromęcki. The so-called „Eugenics Act” of 1938 has also been analyzed. The paper indicates that although Wernic explicitly pointed out his inspiration by German and Italian legislation, his concepts as well as concepts of other Polish eugenicists are original. Similarities with German legislation can be seen for example in the procedure of sterilization or a certain concordance of the catalog of diseases which qualified for sterilization. The Polish proposals, however, were not identical with the Nazi proposals. Neither were they racist or anti-Jewish in content. Moreover, the role of so-called positive eugenics was more strongly emphasized in Poland than in Germany.
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In the following article, I will attempt to present the matter of the German Nationality List in Upper Silesia from three historical and legal perspectives, as well as a brief overview of how it influenced the fate of the Upper Silesians and the Polish-German relations. After a short description of the most important results of the introduction of the German Nationality List in Upper Silesia and its impact on the relations between the Polish and German people, I will present the literal wording of the Fourth Hague Convention (with particular emphasis on the third chapter including the exercise of occupation) and show an example of its use after the First World War. In the next part, I will present the Polish legal interpretation of its provisions in the context of assessing the legality of introducing the German Nationality List in Upper Silesia. In the last part, I will present the different standpoint of German lawyers to achieve my main research goal, which was to present (in a comparative way) the importance of the legal interpretation in international law – although texts of the conventions are most often formulated clearly and initially their wording does not raise any doubts in the interpreter, they create the possibility of a broad interpretation, often openly undermining the foundations of the entire international order. Although the example itself is historical, the subject of differences in the interpretation of international law is particularly important nowadays, with the advancing globalization and international integration. The article uses both the texts of legal acts (the Fourth Hague Convention and the Briand-Kellogg Pact) and their subsequent interpretations by Polish and German lawyers. In the part concerning Polish-German relations in the light of the German Nationality List in Upper Silesia, the memories of witnesses of history were also used.
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The article sets out to present the history of the departments of Law and Criminal Procedure at the Faculty of Law and Social Sciences of the Stefan Batory University in Vilnius through the prism of the two professors Bronisław Wróblewski and Stefan Glaser. They differed in almost everything (except the place of employment); place of birth, almae matres, and above all the way of pursuing academic passion. Unfortunately, their relationship was significantly affected by their differences in the field of politics too. Wróblewski adamantly believed that criminal law and procedure should be lectured and researched separately, whereas Glaser felt otherwise, perhaps on account of his practical experience. The disputes between both of them concerned inter alia Glaser’s professorship appointment and his election to be dean, the reassignment of the academic tasks of their departments, and last but not least – granting them full professorships.
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Oskar Kanecki’s book considerably broadens the state of knowledge of the judiciary of the Grand Duchy of Lithuania during the interregnum periods (16th–18th century). The work deals with the genesis, organisation and process before these courts in an interesting and wide-ranging way. It seems that a drawback of the book is the incomplete use of the Statute of Lithuania and legislation.
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The Academic Portrait of the Creator of the Pure Theory of Law was written by Thomas Olechowski, a professor of the University of Vienna, and a historian of law with an established academic position, having outstanding expertise in the field of the history of the system of law in Austria in the 19th and 20th centuries. Olechowski collected impressive source material - mainly archival, including Kelsen’s extensive correspondence, university and administrative files connected with all the stages of his life and academic activity, and interviews with still-living persons (oral history) who had met Kelsen directly or indirectly. Owing to the obtained material, often secured through detailed source query in Austrian, Czech, German, and American archives, the author managed to correct and complete many details from his subject’s life and works. Hence, the reviewed biography of Kelsen provides a great deal of new information, which presents a view of his life and academic achievements through a multithreaded method. Various examples of little-known or completely unknown facts from H. Kelsen’s biography will be presented in the review.
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The article outlines the most important aspects of the Japanese history and legal system until the beginning of Edo period in 1603. The work emphasizes and discusses the essential historical context and its effects on changing the Japanese legal system. This paper focuses on the specific conditions under which Japanese law was developed and on the influence of Chinese culture on the shaping of Japanese legal thought before the 17th century. The work includes the distinction of the most important legal acts and implemented changes. It is an approach to better understand Japanese law in a historical context and the development of indigenous culture, customs, and beliefs.
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The paper deals with the history of the judge exam in the Kingdom of Serbia. So far, this issue has not been the subject of legal-historical research, although the institution of a special judge exam has a tradition of more than a century in Serbian law. The subject of the paper is processed mainly on the basis of original unpublished and published archival material, as well as relevant domestic literature. Researching the history of the judge exam is important for researching the broader problem of judicial independence in the Kingdom of Serbia, since judicial competence is an important guarantee of judicial independence. The research of the history of the judge exam in Serbia is important at this moment given the fact that the official strategic documents of the Government of the Republic of Serbia announced the reform of the existing concept of the Bar Exam. Without knowing the beginnings of the application of the judge exam institution in Serbian law, it is difficult to implement a valid reform of the institution of the Bar Exam today. The institution of the judge exam was prescribed for the first time in the Kingdom of Serbia by the Law on Judges from 1891, but no sooner than 1911 did it come to life with the adoption of the Law on Judges and the Rules for Taking the Judge Exam. Only persons who worked in the civil service for a certain number of years had the right to take the judge exam, while lawyers who worked in the court were privileged in relation to lawyers from other professions. A number of measures were envisaged to ensure impartiality and publicity. The judge exam was three-part, consisting of a written essay (theme), solving a hypothetical case (clausura) and an oral exam. The legal-theoretical knowledge of the candidates about a specific institute, as well as the knowledge of national and comparative positive law were checked with the written essay. Clausura and the oral exam served to test the practical knowledge of the application of national material and procedural legislation.
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The study examines the final students’ theses of the Faculty of Law of the University of Lithuania (later –Vytautas Magnus University), which was the only one university during the interwar period in Lithuania. Thus, it was the only place where lawyers were prepared. The research is based on the different branches of law, considering structure, literature, legal acts, jurisprudence students used in their theses, and the Lithuanian legal language of that time. The most valuable and interesting quotes of students are presented, the teachers who assessed their works are named, and the fates of the students and teachers are revealed. The research covers over five hundred students’ final theses written between 1925 and 1939. Namely such a number of final theses are held in the Department of Manuscripts of Vilnius University Library. Noteworthy that around one thousand students graduated in law during the interwar period in Lithuania. Each of this thesis was reviewed in the series of four articles published in Lithuanian language. This article summarizes all four articles and presents final conclusions. The theses reveal not only how the Faculty of Law educated lawyers, but also the legal topicalities of Lithuania at that time. Students wrote about various issues of civil, criminal, administrative, constitutional, labour, and international law. Historical, comparative, and analytical methods were used in the research.
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There is no universal definition of transitional justice. Differences among scholars and practitioners in defining transitional justice can be divided to explanations of transitions from: dictatorship to democracy, and/or war to peace, and/or structural violence and inequality to equal and non-violent social structures. These differences are part of dissimilar understandings of the genesis and development of transitional justice. Aim of this paper is to describe the emergence and development of transitional justice, as concept, scientific discipline and praxis. The paper argues that transitional justice as a concept originated in the 1980s, after which it was gradually established as an independent scientific discipline, while its practical purpose was achieved only after the Second World War; although the embryos of transitional justice could be traced much earlier.
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