Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.591-646
B. Suresh, A. Sundaram
Issues of addressing challenges of pursuing Inclusive Sustainable Industrial Development (ISID) complying with Internationally Recognized Human Rights (IHR) without degradation of an environmental ecosystem have attracted researchers and policymakers. Despite sustainable development being promulgated in international and national legal contexts, there is still a gap witnessed in integrating IHR, ISID and environment, Sustainable Development Goals (SDGs), Constitutional and Legislation provisions, and Jurisprudence. Qualitative and quantitative embedded relationship and reinforcing nature of SDGs and Constitution, Judiciary, and Legislations related to IHR, environmental, ISID Jurisprudence, and influence of the principle of sustainable development on the domestic legal regime is analyzed. The paper reveals the pivotal role of the Constitution, Legislation, and Judiciary in establishing a doctrine of sustainable development. Based on the analysis, the paper concludes that the reinforcing and embedded nature between IHR, ISID, environmental protection, SDGs, Constitution, Legislation & Judiciary is undeniable, and this reinforcing and embedded relationship can be utilized holistically in advancing SDGs. The study reveals significant and varied levels of Embedded Relationship Index between the Constitutional provisions and SDGs, thereby signifying the need to include global legal indicators in SDG progress analysis as an explicit reference, and this extra-legal compliance mechanism can produce positive synergies in realizing SDG objectives. As a case study, the Constitution of India, Legislation, and Judgements pronounced in various Courts in India are considered in this paper. Principles established, analysis model developed, and recommendations made in this paper can be deployed across geographies.
{"title":"Embedded Relationship Nature of Human Rights, Industrialization, Environment, Sustainable Development Goals, Constitution, Legislation, and Judiciary","authors":"B. Suresh, A. Sundaram","doi":"10.17803/2713-0533.2023.2.25.591-646","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.591-646","url":null,"abstract":"Issues of addressing challenges of pursuing Inclusive Sustainable Industrial Development (ISID) complying with Internationally Recognized Human Rights (IHR) without degradation of an environmental ecosystem have attracted researchers and policymakers. Despite sustainable development being promulgated in international and national legal contexts, there is still a gap witnessed in integrating IHR, ISID and environment, Sustainable Development Goals (SDGs), Constitutional and Legislation provisions, and Jurisprudence. Qualitative and quantitative embedded relationship and reinforcing nature of SDGs and Constitution, Judiciary, and Legislations related to IHR, environmental, ISID Jurisprudence, and influence of the principle of sustainable development on the domestic legal regime is analyzed. The paper reveals the pivotal role of the Constitution, Legislation, and Judiciary in establishing a doctrine of sustainable development. Based on the analysis, the paper concludes that the reinforcing and embedded nature between IHR, ISID, environmental protection, SDGs, Constitution, Legislation & Judiciary is undeniable, and this reinforcing and embedded relationship can be utilized holistically in advancing SDGs. The study reveals significant and varied levels of Embedded Relationship Index between the Constitutional provisions and SDGs, thereby signifying the need to include global legal indicators in SDG progress analysis as an explicit reference, and this extra-legal compliance mechanism can produce positive synergies in realizing SDG objectives. As a case study, the Constitution of India, Legislation, and Judgements pronounced in various Courts in India are considered in this paper. Principles established, analysis model developed, and recommendations made in this paper can be deployed across geographies.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213304","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.569-590
I. L. Chestnov, E. G. Samokhina
Communication can be monologic or dialogical. Only the latter forms are an essential characteristic of legal reality. At the same time, dialogue is conceived as an immanent feature of sociality as such. In the process of identity formation and personality socialization, dialogue is necessary and inevitable. The process of dialogic socialization ensures the reproduction of any society. Society exists only in case if there is recognition of mutual legal claims, i.e., legitimacy of law. The principle of universal trust as a constitutive foundation of sociality is at the same time the fundamental principle of a legal system. These initial philosophical and legal provisions require explication in the actual legal refraction. Designation of social situations as legal, attributing legal features to them, involves correlation of personal intention with the legal status of the Self and the counterparty in a legal relationship or in a simple form of realization of law. Thus, the relation I-You is mediated by the legal instance of It. However, it is quite difficult to measure the reciprocity of recognition of the Other as a bearer of legal status in empirical reality, especially in the field of public law. The criteria of “extreme injustice” (G. Radbruch’s formula) and “aggressive violence” (in the terminology of V.A. Chetvernin) can be used to explicate the legitimacy of law and can be specified in sociological and legal studies. This paper states the paradox of measuring of the legitimacy of law, which consists in the difference between trust in an empirically given countersubject in a legal relationship, and impersonal status of a legal institution. Trust in the institution, according to the authors, extends, among other things, to a critical attitude towards it, however, with the condition if there is a recognition of the need for its existence. Another paradox of the legitimacy of law, considered in the article, is associated with the antinomy “the ideal — the real.” Violations (non-observance) of legal norms, if they are not widespread, do not put into question the legitimacy of the legal system as a whole. In general, the recognition of law is determined not by the average result of a sociological survey, but by the understanding of the necessity and the inevitability of the Other as a carrier of a typified legal status (for example, in criminal proceedings: in recognizing the interdependence of the Self from Others as carriers of the status of subjects of law).
{"title":"The Dialogic Nature of Legal Communication and the Problem of Measuring the Legitimacy of Law","authors":"I. L. Chestnov, E. G. Samokhina","doi":"10.17803/2713-0533.2023.2.25.569-590","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.569-590","url":null,"abstract":"Communication can be monologic or dialogical. Only the latter forms are an essential characteristic of legal reality. At the same time, dialogue is conceived as an immanent feature of sociality as such. In the process of identity formation and personality socialization, dialogue is necessary and inevitable. The process of dialogic socialization ensures the reproduction of any society. Society exists only in case if there is recognition of mutual legal claims, i.e., legitimacy of law. The principle of universal trust as a constitutive foundation of sociality is at the same time the fundamental principle of a legal system. These initial philosophical and legal provisions require explication in the actual legal refraction. Designation of social situations as legal, attributing legal features to them, involves correlation of personal intention with the legal status of the Self and the counterparty in a legal relationship or in a simple form of realization of law. Thus, the relation I-You is mediated by the legal instance of It. However, it is quite difficult to measure the reciprocity of recognition of the Other as a bearer of legal status in empirical reality, especially in the field of public law. The criteria of “extreme injustice” (G. Radbruch’s formula) and “aggressive violence” (in the terminology of V.A. Chetvernin) can be used to explicate the legitimacy of law and can be specified in sociological and legal studies. This paper states the paradox of measuring of the legitimacy of law, which consists in the difference between trust in an empirically given countersubject in a legal relationship, and impersonal status of a legal institution. Trust in the institution, according to the authors, extends, among other things, to a critical attitude towards it, however, with the condition if there is a recognition of the need for its existence. Another paradox of the legitimacy of law, considered in the article, is associated with the antinomy “the ideal — the real.” Violations (non-observance) of legal norms, if they are not widespread, do not put into question the legitimacy of the legal system as a whole. In general, the recognition of law is determined not by the average result of a sociological survey, but by the understanding of the necessity and the inevitability of the Other as a carrier of a typified legal status (for example, in criminal proceedings: in recognizing the interdependence of the Self from Others as carriers of the status of subjects of law).","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136214047","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.544-568
V. I. Przhilenskiy
The article analyzes the institutional status of the ethics committee as a social regulator. The object of the study is the practice of legal and administrative regulation in the field of application of genetic technologies in the Nordic countries. To this end, a comparative analysis of national legislation and practices regulating the activities of biobanks in these countries is carried out. Particular attention is given to the legal status of the ethics committee, the possibility of the ethics committee performing a regulatory function, as well as its relation to the legal system, is being investigated. Various positions concerning the legitimization of the decisions of the ethics committee in modern literature are considered. The heterogeneity of this institution is determined, which makes it possible to consider it both as legal, administrative and metaethical social regulators.
{"title":"Discussions on the Status of the Ethics Committee and Biobanking Practices in the Nordic Countries","authors":"V. I. Przhilenskiy","doi":"10.17803/2713-0533.2023.2.25.544-568","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.544-568","url":null,"abstract":"The article analyzes the institutional status of the ethics committee as a social regulator. The object of the study is the practice of legal and administrative regulation in the field of application of genetic technologies in the Nordic countries. To this end, a comparative analysis of national legislation and practices regulating the activities of biobanks in these countries is carried out. Particular attention is given to the legal status of the ethics committee, the possibility of the ethics committee performing a regulatory function, as well as its relation to the legal system, is being investigated. Various positions concerning the legitimization of the decisions of the ethics committee in modern literature are considered. The heterogeneity of this institution is determined, which makes it possible to consider it both as legal, administrative and metaethical social regulators.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213012","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.647-680
T. I. Otcheskaya, T. I. Afanasyeva, P. D. Zhukova, N. V. Mishakova, K. A. Orkina, D. I. Shtefan
The Constitutional Court of the Russian Federation has repeatedly stated the extreme importance of human life and health as values without which all other benefits lose their relevance. Despite this approach, practicing law upholders and law-makers are constantly faced with a dilemma between ensuring the human health and following public interests in a different dimension of the state activity. The purpose of this paper is 1) to substantiate the system-forming role of such vital values as preservation of human life and health in law-making and law enforcement, and 2) to determine the vector of legal regulation in the field of public health protection. The authors have analyzed the transformation of the legal regulation of relations aimed at ensuring the health of the nation in a number of key areas: the health of minors, high-tech medicine, the balance of interests of a doctor and a patient in law enforcement, digitalization of medicine and its impact on relations in the field of personal data protection, artificial intelligence in medicine, advanced legal regulation of the constituent entities of the Russian Federation in the field of healthcare. Based on the Russian and foreign legislation, the practice of the courts of the highest instance and the lower courts, the authors have proved a determinative influence of the constitutional obligation of the state to ensure the rights to life and health on the legal regulation and law enforcement. Proposals have been made concerning the need to finalize legal acts aimed at detailing the regulation of issues in these key areas.
{"title":"Ensuring the Health of the Nation as a Determinant of Innovations in Law Enforcement and Judicial Activities","authors":"T. I. Otcheskaya, T. I. Afanasyeva, P. D. Zhukova, N. V. Mishakova, K. A. Orkina, D. I. Shtefan","doi":"10.17803/2713-0533.2023.2.25.647-680","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.647-680","url":null,"abstract":"The Constitutional Court of the Russian Federation has repeatedly stated the extreme importance of human life and health as values without which all other benefits lose their relevance. Despite this approach, practicing law upholders and law-makers are constantly faced with a dilemma between ensuring the human health and following public interests in a different dimension of the state activity. The purpose of this paper is 1) to substantiate the system-forming role of such vital values as preservation of human life and health in law-making and law enforcement, and 2) to determine the vector of legal regulation in the field of public health protection. The authors have analyzed the transformation of the legal regulation of relations aimed at ensuring the health of the nation in a number of key areas: the health of minors, high-tech medicine, the balance of interests of a doctor and a patient in law enforcement, digitalization of medicine and its impact on relations in the field of personal data protection, artificial intelligence in medicine, advanced legal regulation of the constituent entities of the Russian Federation in the field of healthcare. Based on the Russian and foreign legislation, the practice of the courts of the highest instance and the lower courts, the authors have proved a determinative influence of the constitutional obligation of the state to ensure the rights to life and health on the legal regulation and law enforcement. Proposals have been made concerning the need to finalize legal acts aimed at detailing the regulation of issues in these key areas.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"59 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213161","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.475-494
A. V. Polyakov, I. I. Osvetimskaya
The article is founded on the position that social communication as an evolutionary option for the development of communication of all living beings must also include legal communication. In this existential context, legal communication is not reduced only to the transfer of symbolic (textual) information determining the behavior of subjects of law. It is also considered as a vital option for adapting to the environment, which allows both individuals and society to survive, develop and self-realize. Legal communication involves not just cooperation and interaction between legal subjects, but also the observance of the necessary conditions for the implicit and explicit goals of legal communication to be achieved and realized. Implicit (universal, transcendental, evolutionarily necessary) goals are reflected at the sociobiological level in the reciprocal altruism (ego-altruism) of communicants, at the philosophical (rational) level — in the principle of mutual legal and moral recognition, at the religious level — in the commandment “love your neighbor as yourself.” The authors reveal the connection between these concepts and the concept of communication by J. Habermas and the principle of mutual recognition by A. Honneth, on the one hand, and the idea of intuitive law by L.I. Petrażycki and the ideal of “free all-unity” by P.I. Novgorodtsev, on the other hand. It is shown that the findings of these scholars lie at the heart of the communicative theory of law and are supported by neuroscience data. According to the position put forward in this research, the rejection of mutual recognition inevitably entails the assertion of parochial altruism, the ideology of tribalism, the ideological justification of authoritarianism, violence as a universal political method, the neglect of human rights and, as a result, the deformation and destruction of legal communication.
{"title":"Moral Foundations of Legal Communication","authors":"A. V. Polyakov, I. I. Osvetimskaya","doi":"10.17803/2713-0533.2023.2.25.475-494","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.475-494","url":null,"abstract":"The article is founded on the position that social communication as an evolutionary option for the development of communication of all living beings must also include legal communication. In this existential context, legal communication is not reduced only to the transfer of symbolic (textual) information determining the behavior of subjects of law. It is also considered as a vital option for adapting to the environment, which allows both individuals and society to survive, develop and self-realize. Legal communication involves not just cooperation and interaction between legal subjects, but also the observance of the necessary conditions for the implicit and explicit goals of legal communication to be achieved and realized. Implicit (universal, transcendental, evolutionarily necessary) goals are reflected at the sociobiological level in the reciprocal altruism (ego-altruism) of communicants, at the philosophical (rational) level — in the principle of mutual legal and moral recognition, at the religious level — in the commandment “love your neighbor as yourself.” The authors reveal the connection between these concepts and the concept of communication by J. Habermas and the principle of mutual recognition by A. Honneth, on the one hand, and the idea of intuitive law by L.I. Petrażycki and the ideal of “free all-unity” by P.I. Novgorodtsev, on the other hand. It is shown that the findings of these scholars lie at the heart of the communicative theory of law and are supported by neuroscience data. According to the position put forward in this research, the rejection of mutual recognition inevitably entails the assertion of parochial altruism, the ideology of tribalism, the ideological justification of authoritarianism, violence as a universal political method, the neglect of human rights and, as a result, the deformation and destruction of legal communication.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213302","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.720-742
B. A. Shakhnazarov
In the modern world, parallel imports implemented in compliance with the international principle of exhaustion of intellectual property rights can and should become a mechanism for developing free trade, ensuring international competition and protecting the interests of consumers around the world. The sanctions adopted in early 2022 and imposed against the Russian Federation, as well as suspension of the activities of a number of foreign companies in the Russian Federation, encouraged the author to examine the current trajectories of introducing the international principle of exhaustion of rights into legislation and the possibility of parallel imports applied in order to provide Russian consumers with goods that have ceased to be available on the domestic market. The author reviews legislative regulatory acts adopted in Russia for the purpose of ensuring parallel imports and implementing the international principle of exhaustion of rights, analyzes possible problems of its implementation and ways to solve the problems under consideration, examines foreign experience, international legal and regional foundations for the introduction of the exhaustion of rights regime.
{"title":"Parallel Imports and the International Principle of Exhaustion of Rights under Sanctions","authors":"B. A. Shakhnazarov","doi":"10.17803/2713-0533.2023.2.25.720-742","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.720-742","url":null,"abstract":"In the modern world, parallel imports implemented in compliance with the international principle of exhaustion of intellectual property rights can and should become a mechanism for developing free trade, ensuring international competition and protecting the interests of consumers around the world. The sanctions adopted in early 2022 and imposed against the Russian Federation, as well as suspension of the activities of a number of foreign companies in the Russian Federation, encouraged the author to examine the current trajectories of introducing the international principle of exhaustion of rights into legislation and the possibility of parallel imports applied in order to provide Russian consumers with goods that have ceased to be available on the domestic market. The author reviews legislative regulatory acts adopted in Russia for the purpose of ensuring parallel imports and implementing the international principle of exhaustion of rights, analyzes possible problems of its implementation and ways to solve the problems under consideration, examines foreign experience, international legal and regional foundations for the introduction of the exhaustion of rights regime.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213298","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.495-514
V. V. Denisenko
The paper is dedicated to the analysis of the communicative law function, which is the basis of the modern interaction between social state and civil society in the era of the digital law formation. In the context of modern digital society and state, we need to take into account the specificity of understanding and classification of the law functions. Communication is one of the most important characteristics of modern digital state and law. In this regard, the paper considers the communicative law function both socially and legally. Socially, the communicative function is considered as an informational one. In this regard, it is essential for the legal culture, legal education and legal consciousness. Communicative function as a social one involves understanding of the interaction between society and law from a position of the linguistic para digm. With this concept, the legal system is seen as a system of communication between subjects based on the autonomy of the individual. In the modern digital state communication as a social function of law is a basis of legitimization of legal acts. The legal consciousness is an important condition for law recognition. Along with the social function, communication plays an important role as a legal one. In this aspect, communicative action is connected to the regulatory and the protective functions of law. Communication plays a key role in the modern legal regulation due to the extension of its subject. The functioning of law in modernity has its own specifics with regard to the process of society juridification under conditions of law modernization and fulfilment of the state social function. The juridification consists in the fact that legal norms replace other social rules. Regulation of the majority of social relations through legal functions leads to the need to take into account communicative connections in society. Legal functions of law in the modern society should use the principle of deliberation in law to achieve their goals. Communication in its functional aspect is deemed a necessary foundation of an effective legal regulation and legal policy.
{"title":"The Communicative Function of Law in a Digital State","authors":"V. V. Denisenko","doi":"10.17803/2713-0533.2023.2.25.495-514","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.495-514","url":null,"abstract":"The paper is dedicated to the analysis of the communicative law function, which is the basis of the modern interaction between social state and civil society in the era of the digital law formation. In the context of modern digital society and state, we need to take into account the specificity of understanding and classification of the law functions. Communication is one of the most important characteristics of modern digital state and law. In this regard, the paper considers the communicative law function both socially and legally. Socially, the communicative function is considered as an informational one. In this regard, it is essential for the legal culture, legal education and legal consciousness. Communicative function as a social one involves understanding of the interaction between society and law from a position of the linguistic para digm. With this concept, the legal system is seen as a system of communication between subjects based on the autonomy of the individual. In the modern digital state communication as a social function of law is a basis of legitimization of legal acts. The legal consciousness is an important condition for law recognition. Along with the social function, communication plays an important role as a legal one. In this aspect, communicative action is connected to the regulatory and the protective functions of law. Communication plays a key role in the modern legal regulation due to the extension of its subject. The functioning of law in modernity has its own specifics with regard to the process of society juridification under conditions of law modernization and fulfilment of the state social function. The juridification consists in the fact that legal norms replace other social rules. Regulation of the majority of social relations through legal functions leads to the need to take into account communicative connections in society. Legal functions of law in the modern society should use the principle of deliberation in law to achieve their goals. Communication in its functional aspect is deemed a necessary foundation of an effective legal regulation and legal policy.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"31 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136212639","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.515-543
E. N. Trikoz, E. E. Gulyaeva
The article analyzes the definition of the communicative function of law from the point of view of legal communication between the dependent legal systems of the former colonies. In this context, the “evergreen issue” arises about legal transplantation, the legal transfer of norms and institutions and reception of nomadic legal constructs. The modern comparative lexicon uses three types of metaphors related to the interaction of legal systems and their law hybridization: anthropomorphic, communicative and mechanical metaphors. Among the best-known cases of legal transplantation, the authors pay attention to the spread of codes, the diffusion of common law, and the emergence of mixed legal systems. They explore the positivist concept of “legal transplants,” which appeared in comparative discourse thanks to the theory of Alan Watson. The article discusses the comparative opposition to this theory — the so-called cultural concept of legal transplants (transferists vs. culturalist debate), as well as the musical metaphor “legal transposition” and the process of diffusion of law in dependent legal systems. The practice of legal transplants in mixed common law systems and their application in practice are analyzed in national jurisdictions. The article shows criminal legal bijuridism and the process of the so-called “diffuse codification” in India, Canada, Australia and other British former colonies, which is an example of codistics communication of dissimilar political and legal cultures and circulation of model codes between them. In conclusion, attention is drawn to the discourse of the effectiveness, applicability and effectiveness of transplants. It is concluded that the success — failure discourse of legal transplants depends on the degree of communicativeness of transplanted and receptive constructs, their ability to “speak” in an understandable language for the host cultural environment of law.
{"title":"The Communicative Function of Legal Transplants in Mixed Legal Systems","authors":"E. N. Trikoz, E. E. Gulyaeva","doi":"10.17803/2713-0533.2023.2.25.515-543","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.515-543","url":null,"abstract":"The article analyzes the definition of the communicative function of law from the point of view of legal communication between the dependent legal systems of the former colonies. In this context, the “evergreen issue” arises about legal transplantation, the legal transfer of norms and institutions and reception of nomadic legal constructs. The modern comparative lexicon uses three types of metaphors related to the interaction of legal systems and their law hybridization: anthropomorphic, communicative and mechanical metaphors. Among the best-known cases of legal transplantation, the authors pay attention to the spread of codes, the diffusion of common law, and the emergence of mixed legal systems. They explore the positivist concept of “legal transplants,” which appeared in comparative discourse thanks to the theory of Alan Watson. The article discusses the comparative opposition to this theory — the so-called cultural concept of legal transplants (transferists vs. culturalist debate), as well as the musical metaphor “legal transposition” and the process of diffusion of law in dependent legal systems. The practice of legal transplants in mixed common law systems and their application in practice are analyzed in national jurisdictions. The article shows criminal legal bijuridism and the process of the so-called “diffuse codification” in India, Canada, Australia and other British former colonies, which is an example of codistics communication of dissimilar political and legal cultures and circulation of model codes between them. In conclusion, attention is drawn to the discourse of the effectiveness, applicability and effectiveness of transplants. It is concluded that the success — failure discourse of legal transplants depends on the degree of communicativeness of transplanted and receptive constructs, their ability to “speak” in an understandable language for the host cultural environment of law.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"254 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136212794","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}
Pub Date : 2023-10-11DOI: 10.17803/2713-0533.2023.2.25.681-719
T. Al-Billeh
This article deals with the disciplinary measure’s consequent on judges’ misuse of social media in Jordan and France. In fact, the research aims at approaching the disciplinary measures consequent on the judges’ misusing the social media and stating at the cases that constitute a breach against the judicial job duties for which the issue of the study is in the extent of allowance of granting the judges the freedom to use social media and the extent to which judges publish their professional achievements, disclose their job information, comment on public opinion cases published on social media and participate in analysis and discussion. Yet, this study adopted the applied methodology for the variety of the legislations that have been different in dealing with sections and topics falling under this subject. In fact, the study concluded with several findings and recommendations, the most important of which is the necessity of subjecting judges in Jordan to adequate training on ethical principles to exercise basic freedoms, both in relation to their profession and in activities outside the scope of the profession while that this training shall include, in particular, practical guidance on the use of social media and the need to involve judges in Jordan when setting legislation and ethical standards related to the exercise of fundamental freedoms and political rights within the framework of an open and transparent process, taking into consideration the existing international standards related to the exercise of fundamental freedoms and the jurisprudence of courts as well as the regional human rights mechanisms.
{"title":"Disciplinary Measures Consequent on the Judges’ Misuse of Social Media in Jordanian and French Legislation: A Difficult Balance between Freedom of Expression and Restrictions on Judicial Ethics","authors":"T. Al-Billeh","doi":"10.17803/2713-0533.2023.2.25.681-719","DOIUrl":"https://doi.org/10.17803/2713-0533.2023.2.25.681-719","url":null,"abstract":"This article deals with the disciplinary measure’s consequent on judges’ misuse of social media in Jordan and France. In fact, the research aims at approaching the disciplinary measures consequent on the judges’ misusing the social media and stating at the cases that constitute a breach against the judicial job duties for which the issue of the study is in the extent of allowance of granting the judges the freedom to use social media and the extent to which judges publish their professional achievements, disclose their job information, comment on public opinion cases published on social media and participate in analysis and discussion. Yet, this study adopted the applied methodology for the variety of the legislations that have been different in dealing with sections and topics falling under this subject. In fact, the study concluded with several findings and recommendations, the most important of which is the necessity of subjecting judges in Jordan to adequate training on ethical principles to exercise basic freedoms, both in relation to their profession and in activities outside the scope of the profession while that this training shall include, in particular, practical guidance on the use of social media and the need to involve judges in Jordan when setting legislation and ethical standards related to the exercise of fundamental freedoms and political rights within the framework of an open and transparent process, taking into consideration the existing international standards related to the exercise of fundamental freedoms and the jurisprudence of courts as well as the regional human rights mechanisms.","PeriodicalId":484989,"journal":{"name":"Kutafin law review","volume":"202 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-10-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"136213164","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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