Abstract The present article is grounded in the following inquiry: are the rules concerning contractual interpretation provided by codified regulations or developed by jurisprudence for private law contracts also applicable to smart legal contracts? This question will be addressed through the utilization of a comparative research methodology, taking into account the trends embraced by scholars as well as by courts in both common law and civil law systems. In conclusion, and based on these methodological premises, various solutions present themselves to the interpreter, including the non-complete exclusion of the non-complete exclusion of the interpretative model based on the so-called contextualist theory. A similar theoretical approach would allow for an efficient synthesis between the more ambiguous legal expressions and the use of technological language.
{"title":"The Interpretation Matter in Smart (Legal) Contracts: Possible Answers from a Comparative Perspective","authors":"Francesco Petrosino","doi":"10.1515/gj-2023-0118","DOIUrl":"https://doi.org/10.1515/gj-2023-0118","url":null,"abstract":"Abstract The present article is grounded in the following inquiry: are the rules concerning contractual interpretation provided by codified regulations or developed by jurisprudence for private law contracts also applicable to smart legal contracts? This question will be addressed through the utilization of a comparative research methodology, taking into account the trends embraced by scholars as well as by courts in both common law and civil law systems. In conclusion, and based on these methodological premises, various solutions present themselves to the interpreter, including the non-complete exclusion of the non-complete exclusion of the interpretative model based on the so-called contextualist theory. A similar theoretical approach would allow for an efficient synthesis between the more ambiguous legal expressions and the use of technological language.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"2 1","pages":"255 - 273"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139330149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Despite the polysemic nature a unique and dominant model of “property” has spread globally. It finds in the natural law thought its political and moral justification and in the article 544 of the Napoleonic Code its technical translation. The simple rhetoric of proprietary individualism elaborated within the economic analysis of law become the institutional reference in the governance of global economy. But private property is only one model of resources distribution and has not always been the main one for a long time. Comparative legal method shows us that the term property does not have a unique meaning, but it reveals the existence of alternative resource management models such as collective actions that are careful for the protection of fundamental rights and can preserve natural resources for the benefit of future generation.
{"title":"Private Property and the Commons: The Case Study of Water Distribution in Persian Qanats","authors":"Andrea Pradi","doi":"10.1515/gj-2023-0124","DOIUrl":"https://doi.org/10.1515/gj-2023-0124","url":null,"abstract":"Abstract Despite the polysemic nature a unique and dominant model of “property” has spread globally. It finds in the natural law thought its political and moral justification and in the article 544 of the Napoleonic Code its technical translation. The simple rhetoric of proprietary individualism elaborated within the economic analysis of law become the institutional reference in the governance of global economy. But private property is only one model of resources distribution and has not always been the main one for a long time. Comparative legal method shows us that the term property does not have a unique meaning, but it reveals the existence of alternative resource management models such as collective actions that are careful for the protection of fundamental rights and can preserve natural resources for the benefit of future generation.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"285 1","pages":"287 - 304"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139328738","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The Court of Justice of the European Union (CJEU) interprets directives and regulations, forming what will be called a hybrid space where national legal systems and supranational elements converge, particularly when asserting the autonomy of a notion. Comparative law has supported legal norm harmonisation but has also revealed the diversity within legal systems, including the EU’s, through the study of legal formants. The goal of this contribution is to show how a comparative approach, incorporating the concept of hybridity from other disciplines, can aid in analysing autonomous interpretation and the influence of hybridisation on legal concepts and terminology.
{"title":"Exploring Judicial Interpretation: Comparative Law Methodology and the Hybridisation Paradigm","authors":"Caterina Bergomi","doi":"10.1515/gj-2023-0119","DOIUrl":"https://doi.org/10.1515/gj-2023-0119","url":null,"abstract":"Abstract The Court of Justice of the European Union (CJEU) interprets directives and regulations, forming what will be called a hybrid space where national legal systems and supranational elements converge, particularly when asserting the autonomy of a notion. Comparative law has supported legal norm harmonisation but has also revealed the diversity within legal systems, including the EU’s, through the study of legal formants. The goal of this contribution is to show how a comparative approach, incorporating the concept of hybridity from other disciplines, can aid in analysing autonomous interpretation and the influence of hybridisation on legal concepts and terminology.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"243 - 253"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139329243","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The contribution deals with the representation of African law in comparative legal literature. It aims at moving forward from an understanding of African legal systems as bounded entities, frequently dubbed “pluralistic” but too often described as derivative from western law, that is the law of the former colonial powers. The paper reacts to common representations of African law based on the “stratigraphic approach” and on the notion of legal pluralism. While remaining a valuable tool for the study of African legal systems in a structuralist fashion, the stratigraphic approach ultimately fails to capture the more dynamic dimension of legal relations and the agency of legal subjects better conveyed by the notion of legal pluralism. The notion of legal pluralism, in turn, points at the existence of plural normative orders in all legal systems, therefore it seems to have lost its specificity to post-colonial African societies. Moreover, research on legal pluralism has become progressively dominated by academic lawyers adopting a normative and theoretical approach with little regard for empirical observation of law in society.
{"title":"Methodological Paradigms in Representing African Law: The Stratigraphic Approach and the Notion of Legal Pluralism","authors":"Luca Pes","doi":"10.1515/gj-2023-0133","DOIUrl":"https://doi.org/10.1515/gj-2023-0133","url":null,"abstract":"Abstract The contribution deals with the representation of African law in comparative legal literature. It aims at moving forward from an understanding of African legal systems as bounded entities, frequently dubbed “pluralistic” but too often described as derivative from western law, that is the law of the former colonial powers. The paper reacts to common representations of African law based on the “stratigraphic approach” and on the notion of legal pluralism. While remaining a valuable tool for the study of African legal systems in a structuralist fashion, the stratigraphic approach ultimately fails to capture the more dynamic dimension of legal relations and the agency of legal subjects better conveyed by the notion of legal pluralism. The notion of legal pluralism, in turn, points at the existence of plural normative orders in all legal systems, therefore it seems to have lost its specificity to post-colonial African societies. Moreover, research on legal pluralism has become progressively dominated by academic lawyers adopting a normative and theoretical approach with little regard for empirical observation of law in society.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"30 1","pages":"275 - 285"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139327701","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Although the geographical area historically known as “Persia” has never been properly a “fertile land”, water shortage did not represent a problem for the diverse and multiple populations that inhabited the Iranian Plateau throughout millennia. The ancient Persian civilization could flourish thanks to sophisticated water knowledge and water management strategies that allowed it to become the dominating culture of the vast Persian Empire, which by the year 500 BC, extended from the borders of India to the western coasts of Minor Asia and the Caucasus. Even after the fall of the empire, the successive populations could live in arid areas thanks to an ancient system of water provision and management called “Qanat”. Qanats not only provided water from an underneath water spring to desert lands and remote areas of the region; they also reflected a specific “water cultural system” based on sharing and managing water as a common good. The paper will discuss how water shortage in present day Iran is, on the one hand, related to a progressive abandonment of the Qanats system, substituted by the use of modern irrigation systems, the privatization of water and the progressive abandonment of the common. On the other hand, this abandonment is related with dramatic cultural change and weakening of community identity, impacting the sustainability of human life in the Iranian Plateau’s arid areas.
{"title":"Private Property and the Commons: The Case Study of Water Distribution in Persian Qanats","authors":"Sara Hejazi","doi":"10.1515/gj-2023-0125","DOIUrl":"https://doi.org/10.1515/gj-2023-0125","url":null,"abstract":"Abstract Although the geographical area historically known as “Persia” has never been properly a “fertile land”, water shortage did not represent a problem for the diverse and multiple populations that inhabited the Iranian Plateau throughout millennia. The ancient Persian civilization could flourish thanks to sophisticated water knowledge and water management strategies that allowed it to become the dominating culture of the vast Persian Empire, which by the year 500 BC, extended from the borders of India to the western coasts of Minor Asia and the Caucasus. Even after the fall of the empire, the successive populations could live in arid areas thanks to an ancient system of water provision and management called “Qanat”. Qanats not only provided water from an underneath water spring to desert lands and remote areas of the region; they also reflected a specific “water cultural system” based on sharing and managing water as a common good. The paper will discuss how water shortage in present day Iran is, on the one hand, related to a progressive abandonment of the Qanats system, substituted by the use of modern irrigation systems, the privatization of water and the progressive abandonment of the common. On the other hand, this abandonment is related with dramatic cultural change and weakening of community identity, impacting the sustainability of human life in the Iranian Plateau’s arid areas.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"5 1","pages":"305 - 316"},"PeriodicalIF":0.0,"publicationDate":"2023-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"139330041","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
R. Perona, Daniel Eduardo Florez Muñoz, Fernando Luna Salas
Abstract The paper addresses the fundamental aspects of transitional justice in Colombia, within the legal framework developed to obtain peace and considering the broad case law of the Colombian Constitutional Court on the matter. To this end, after laying down some foundations concerning the scope of the constitutional principle of “peace” in the Colombian legal order and the concepts of justice, truth, reparation and guarantee of non-repetition, the study focuses on the legislative and judicial developments that have characterized the process, starting from its very beginning up until the report of the Commission for the Clarification of the Truth in 2022.
{"title":"Peace through Justice, Truth, Reparation and Non-Repetition: Normative and Judicial Developments of the Special Legal Framework of Transitional Justice in Colombia","authors":"R. Perona, Daniel Eduardo Florez Muñoz, Fernando Luna Salas","doi":"10.1515/gj-2023-0025","DOIUrl":"https://doi.org/10.1515/gj-2023-0025","url":null,"abstract":"Abstract The paper addresses the fundamental aspects of transitional justice in Colombia, within the legal framework developed to obtain peace and considering the broad case law of the Colombian Constitutional Court on the matter. To this end, after laying down some foundations concerning the scope of the constitutional principle of “peace” in the Colombian legal order and the concepts of justice, truth, reparation and guarantee of non-repetition, the study focuses on the legislative and judicial developments that have characterized the process, starting from its very beginning up until the report of the Commission for the Clarification of the Truth in 2022.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"207 - 236"},"PeriodicalIF":0.0,"publicationDate":"2023-06-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43031666","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Directive 2019/770, of 20 May, on certain aspects concerning contracts for the supply of digital content and digital services addresses the possibility for the trader to modify features of the digital content or digital service supplied or made accessible to the consumer over a period of time. Considering the fast-evolving character of digital elements, modifications can be advantageous for the consumer. Such modifications can be divided into two categories: those necessary to maintain the conformity of the digital content or service (the updates referred to in the Directive) and those that are unnecessary or evolutionary, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract. The modifications that are necessary to keep conformity with the contract are also foreseen in the Sale of Goods Directive (Directive 2019/771), given that the digital content or digital service incorporated in or interconnected with the goods is constantly developing. However, this directive dos not make any provision for unnecessary or evolutionary modifications. The main purpose of this article is to examine the category of non-necessary modifications referred to exclusively in the Directive 2019/770. It also analyses the possibility of modifying the digital element that accompanies the good (in categories of good with digital elements). The analysis is approached from the perspective of unfair commercial practices and the need to address the premature wear and tear of the so-called goods with digital elements.
{"title":"From Conformity to Sustainability: Understanding the Implications of Digital Content Modifications under Directives 2019/770 and 771","authors":"Rosa Barceló Compte","doi":"10.1515/gj-2023-0005","DOIUrl":"https://doi.org/10.1515/gj-2023-0005","url":null,"abstract":"Abstract Directive 2019/770, of 20 May, on certain aspects concerning contracts for the supply of digital content and digital services addresses the possibility for the trader to modify features of the digital content or digital service supplied or made accessible to the consumer over a period of time. Considering the fast-evolving character of digital elements, modifications can be advantageous for the consumer. Such modifications can be divided into two categories: those necessary to maintain the conformity of the digital content or service (the updates referred to in the Directive) and those that are unnecessary or evolutionary, which would deviate from the objective requirements for conformity and which are foreseeable at the time of conclusion of the contract. The modifications that are necessary to keep conformity with the contract are also foreseen in the Sale of Goods Directive (Directive 2019/771), given that the digital content or digital service incorporated in or interconnected with the goods is constantly developing. However, this directive dos not make any provision for unnecessary or evolutionary modifications. The main purpose of this article is to examine the category of non-necessary modifications referred to exclusively in the Directive 2019/770. It also analyses the possibility of modifying the digital element that accompanies the good (in categories of good with digital elements). The analysis is approached from the perspective of unfair commercial practices and the need to address the premature wear and tear of the so-called goods with digital elements.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"0 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46800579","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Jorge Freddy Milian Gómez, José Grabiel Luis Cordova
Abstract This research addresses the theoretical and legal perspectives of energy-smart agri-food systems (ESAFS) concerning sustainability and the right to food. ESAFS supplies self-generated sustainable energy for agricultural production. These are an alternative for reducing agri-food systems’ dependence on fossil fuels and building their resilience against exponential energy prices. There is a scarce legal regulation on the implementation of renewable energy sources in the agri-food sector, which decides the poor theoretical and legal treatment. This research’s main objective is to approach renewable energy sources in agri-food production in Latin America and the Caribbean from a theoretical and legal perspective.
{"title":"Theoretical and Legal Perspectives on Energy-Smart Agri-Food Systems: Sustainability and the Right to Food","authors":"Jorge Freddy Milian Gómez, José Grabiel Luis Cordova","doi":"10.1515/gj-2022-0072","DOIUrl":"https://doi.org/10.1515/gj-2022-0072","url":null,"abstract":"Abstract This research addresses the theoretical and legal perspectives of energy-smart agri-food systems (ESAFS) concerning sustainability and the right to food. ESAFS supplies self-generated sustainable energy for agricultural production. These are an alternative for reducing agri-food systems’ dependence on fossil fuels and building their resilience against exponential energy prices. There is a scarce legal regulation on the implementation of renewable energy sources in the agri-food sector, which decides the poor theoretical and legal treatment. This research’s main objective is to approach renewable energy sources in agri-food production in Latin America and the Caribbean from a theoretical and legal perspective.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-05-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48298146","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Platform Recommender Systems (PRSs) are the algorithmic systems employed by online platforms to recommend content to users. These systems have been recently targeted by policy-makers in Europe, mainly in the Digital Services Act (DSA). While much is discussed on the merits and limitations of the DSA, the very first world regulation of PRSs has been implemented by the People’s Republic of China since March 1st 2022. The article elaborates a critical comparative analysis of the governance of PRSs between the Chinese and European regulations. By contextualizing the highly diverse media environments, the article bridges the gaps between legal, technical and social sciences disciplines to elaborate insights that aim to contribute to the development of the governance of PRS. The article is divided as follows; firstly, an introduction to the governance of platforms RSs is done. Then, a contextualization of European and the Chinese legal and media environment is provided. Secondly, a legal comparative analysis is developed by analyzing two main areas: algorithmic accountability and self-determination. Thirdly, a discussion on the challenges of PRS governance is elaborated and, eventually, conclusions are drawn. From the comparison we have identified fundamental challenges and opportunities for the development of PRSs governance: (1) the methodological validity of social media research and the possibility to run on-platform experiments for more sounding policies; (2) the inherent reductionism of profiling and the need to tackle the implicit “engagement optimization” paradigm; (3) the systemic vulnerability of users and the need to improve detection, prevention and legal codification of algorithmic and design manipulation; (4) the complex entanglement of PRS governance with interface design, content moderation and content visibility moderation; finally, (5) the promising role of users to provide a second-order accountability as well as strenghten individual self-determination through forms of participatory governance.
{"title":"Governing Platform Recommender Systems in Europe: Insights from China","authors":"Urbano Reviglio, G. Santoni","doi":"10.1515/gj-2023-0013","DOIUrl":"https://doi.org/10.1515/gj-2023-0013","url":null,"abstract":"Abstract Platform Recommender Systems (PRSs) are the algorithmic systems employed by online platforms to recommend content to users. These systems have been recently targeted by policy-makers in Europe, mainly in the Digital Services Act (DSA). While much is discussed on the merits and limitations of the DSA, the very first world regulation of PRSs has been implemented by the People’s Republic of China since March 1st 2022. The article elaborates a critical comparative analysis of the governance of PRSs between the Chinese and European regulations. By contextualizing the highly diverse media environments, the article bridges the gaps between legal, technical and social sciences disciplines to elaborate insights that aim to contribute to the development of the governance of PRS. The article is divided as follows; firstly, an introduction to the governance of platforms RSs is done. Then, a contextualization of European and the Chinese legal and media environment is provided. Secondly, a legal comparative analysis is developed by analyzing two main areas: algorithmic accountability and self-determination. Thirdly, a discussion on the challenges of PRS governance is elaborated and, eventually, conclusions are drawn. From the comparison we have identified fundamental challenges and opportunities for the development of PRSs governance: (1) the methodological validity of social media research and the possibility to run on-platform experiments for more sounding policies; (2) the inherent reductionism of profiling and the need to tackle the implicit “engagement optimization” paradigm; (3) the systemic vulnerability of users and the need to improve detection, prevention and legal codification of algorithmic and design manipulation; (4) the complex entanglement of PRS governance with interface design, content moderation and content visibility moderation; finally, (5) the promising role of users to provide a second-order accountability as well as strenghten individual self-determination through forms of participatory governance.","PeriodicalId":34941,"journal":{"name":"Global Jurist","volume":"23 1","pages":"151 - 181"},"PeriodicalIF":0.0,"publicationDate":"2023-04-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46573630","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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