Looping effects of neurolaw, and the precarious marriage between neuroscience and the law

Author(s): Toma Strle,Olga Markič / Language(s): English Issue: 1/2018

In the following article we first present the growing trend of incorporating neuroscience into the law, and the growing acceptance of and trust in neuroscience’s mechanistic and reductionistic explanations of the human mind. We then present and discuss some studies that show how nudging peoples’ beliefs about matters related to human agency (such as free will, decision-making, or self-control) towards a more deterministic, mechanistic and/or reductionistic conception, exerts an influence on their very actions, mentality, and brain processes. We suggest that the neuroscientific view of the human mind exerts an influence on the very cognitive phenomena neuroscience falsely believes to be studying objectively. This holds especially when we consider the systematic integration of neuroscience into the public domain, such as the law. For, such an integration acts as a reinforcement of the public’s and legal decision-makers’ endorsement of and trust in neuroscience’s view of human nature that further changes how people think and act. Such looping effects of neurolaw are probably inevitable. Accordingly, we should be aware of the scope of neuroscientific explanations and be careful not to overstate neuroscientific evidence and findings in legal contexts.

Freedom, Responsibility and Jurisprudence

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

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

Retributivist Theory of Punishment: Some Comments

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

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

Konstytucyjność uregulowań w zakresie nadzoru fachowego nad szkołami wyższymi w Polsce na gruncie ustawy Prawo o szkolnictwie wyższym i nauce

Author(s): Agnieszka Bednarczyk-Płachta / Language(s): Polish Issue: 25/2020

The Polish Accreditation Committee (Polska Komisja Akredytacyjna – further as „PKA”) is an entity authorised to conduct control activities supporting the minister’s supervisory competencies. The institution aroused great controversy from the very beginning. The procedures and operating principles, as part of professional supervision, have been declared as unconstitutional. Despite the fact that the decisions issued by the Constitutional Tribunal are generally applicable, it’s not known why the legislator feels he is released from his obligation to comply with the Tribunal’s decisions, putting into legal circulation regulations which are already considered unconstitutional. In the field of regulations on professional supervision over universities the presented situation not only undermines the fundamental rights of universities, as entities external to public administration, but also has the direct impact over citizens’ rights – students studying in controlled universities. The presented study discusses the law regulations of higher education and science in the scope of the procedures and competences given to the PKA in terms of their compliance with the Constitution. Comparing previously applicable higher education law before and after Constitutional Tribunal’s passed verdict from 2013 (which stated the unconstitutionality of regulations in the scope of the control procedure carried out by PKA) with applicable law allows to support the thesis about the unconstitutionality of new regulations introduced in this respect and depriving universities of the right to an effective defence. Derived conclusions clearly indicates that the new law, which in its assumptions was to be better and revolutionize higher education in Poland, is another legal act requiring a thorough change from the very beginning, which does not improve the legal situation of universities in Poland in the examined scope, and in some aspects makes the situation much worse.

CONSTITUTIONAL TRADITIONS – THE BULGARIAN PERSPECTIVE

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

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

CONSTITUTIONAL MOMENT OR FAILURE: CONSTITUTIONAL POLITICS IN BULGARIA 2020

Author(s): Atanas Slavov / Language(s): English Issue: 1/2021

Constitutional politics in Bulgaria is rather transient and unpredictable process. Constitutional changes very often follow not established principles and standards, but the logic of political expediency of the moment. Upholding the independence of the judiciary in the context of declining rule of law and democratic standards is a challenging matter. After 30 years of democratic experience, Bulgaria has not completed key institutional reforms in the judicial branch. Constitutional amendments are again on the political agenda concerning the structural division of the Supreme Judicial Council that will ensure independence of the judiciary, and the need of accountability and effective procedure of dismissal of the over-powerful Prosecutor General. How to mobilize political and public support for the amendments implementing established European standards remains a crucial task for the Bulgarian political elite and the civil society to work out.

Migration at European Union level in correlation with the Public Administration

Author(s): Irina Zlătescu,Alexandra Bucur / Language(s): English Issue: 8/2020

The phenomenon of immigration requires special attention in the field of public administration. The article presents in the initial part the correlation between migration and public administration. Following, there are the main developments of migration at EU level, with a focus on September 2019. The “hotspot approach” is also highlighted during the study. At the end of the article is presented the importance of public administration in relation to the new transformations of the society, migration being one of these.

The Lack of Legal Protection of Union Rights on Termination of Fixed Term Academics at Public Universities in the Flemish Community of Belgium. Admissibility Issues of an Application Based on the Framework Agreement on Fixed-term Work at Public Unive

Author(s): Gracienne Lauwers / Language(s): English Issue: 25/2020

The question of sufficient protection of academics employed with successive fixed-term employment contracts or relationships in the university sector had been raised in several procedures before the Court of Justice of the European Union (hereafter: CJEU). These cases deal with the substantive basis of the claims of the academics. Admissibility of their claims was not an issue. Unlike the research dealing with the substantive basis of the claims of academics based on the Framework agreement on fixed-term work, this article deals with a ruling on the admissibility of the plea based on the Framework agreement on fixed-term work encountered by academics in the Flemish Community of Belgium. The article first outlines the exception from general labour law in the Higher Education Code of the Flemish Community of Belgium that allows universities to employ academics indefinitely with fixed-term relationships through the practice of a mosaic combination of a part-time statutory employment under administrative law and a part-time contractual employment under labour law. It then discusses the impact of the exceptions on the admissibility of claims for damages, compensation and reinstatement by fixed-term academics at a Flemish public university based on the violation of Council Directive 1999/70/EC and Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP brought before the Council of State, which is the supreme administrative court of Belgium. The author argues that the Belgian Council of State incorrectly applied Directive 1999/70/EC and the Framework agreement on fixed-term work in judgment no. 247.434 of April 21, 2020, while it was – in its capacity of supreme administrative court of Belgium – under the obligation of Article 267 TFEU to refer for a preliminary ruling to the CJEU. The refusal by the Belgian Council of State to refer questions for a preliminary ruling to the CJEU and a wrong interpretation of Union law could result i. a. in State liability for damage resulting from breach of its obligations under Community law whereas the CJEU could have helped the Belgian Council of State in a preliminary ruling to determine the concept of ‘successive’ employment relationships, preventive measures and measures to punish abuse of fixed term contracts in Flemish universities, rule whether the articles in the Flemish Higher Education Code on vacancies and employment of fixed-term academic staff violate the Council Directive 1999/70/EC and Framework agreement on fixed-term work, and whether national Belgian procedural law makes the application for fixed-term academic staff at a Flemish public university virtually impossible or excessively difficult and therefore incompatible with the principle of effectiveness of Union law.

Linden Thomas, Nick Johnson (eds.), The Clinical Legal Education Handbook, University of London Press, London 2020, pp. 465

Author(s): Paul McKeown / Language(s): English Issue: 25/2020

American Studies in Poland

Author(s): Tomasz Płudowski / Language(s): English Issue: 21/2020

The article presents the development and current state of American Studies in Poland as a discipline, starting with its historic and political background, through institutional foundations, to current research and teaching, especially from the social scientific perspective. The article argues that American Studies went from virtual absence in Stalinist Poland to post-1989 rapid expansion and continues to attract students despite the lack of institutional and disciplinary independence. Even though it is mostly affiliated to English programs, it continues to go outside the boundaries of the traditional approaches of history and literature to include cultural studies, political science, sociology, communication, and law.

Three-Dimensional (3D) Printing as Intellectual Property

Author(s): Vladislava Petrova / Language(s): English Issue: 1/2020

The subject matter of this article is the three-dimensional (3D) printing and its protection as industrial property, more particularly as inventions. It indicates the essence of 3D printing and the areas of application of the technology. The protection of the results of 3D printing as inventions is considered, also the advantages and disadvantages of additive manufacturing are analysed. A profile of the enterprises developing 3D printing technologies has been made. The results of the performed patent research are analysed. The filed applications for inventions and the issued patents in the field of 3D printing in a national and international aspect are identified.

Fundamental Rights: Comparison of the Approaches in the Canon Law and in the Civil Law

Author(s): Stanislav Přibyl / Language(s): English Issue: 6/2020

The Code of Canon Law of 1983 came up with a list of obligations and duties of the Catholic faithful. This list is analogical to those of the charters of fundamental rights and freedoms found in the documents of international law and in the constitutions of democratic countries. the inspiration of church law by civilian law was a reality from the very beginnings of the development of Canon Law: first by Roman Law, in the modern world by complex codifications of civil law, and after Vatican II also the idea of universal human rights. The specifics of the Catholic Church in relation to a democratic state is the incorporation of the subject of law into the Church through baptism which brings, above all, duties and obligations. Thus the catalogue which may now be seen in the Code contains first and foremost a list of duties, not rights, which are not stressed in the modern state. In fact, the modern state has very few demands; often just the payment of taxes and compulsory school attendance. The article deals with the individual obligations and rights found in the Code of Canon Law and compares them with their analogies in constitutions. The concept of civil and canonical norms tends to get closer primarily in the case of inspiration by natural law, whereas the obligations of the faithful represent a specifically ecclesiastical goals, for which no analogy in civil law can be found. After all, the supreme law of the Church is the salvation of souls, indeed, the state does not have such a supernatural goal.

Od istorije do sudnice i nazad: Šta istoriografija može dobiti od presuda za zločine u ratovima u bivšoj Jugoslaviji

Author(s): Ivan Jovanović / Language(s): Serbian Issue: 5/2015

An Analysis of The Contents of History Textbooks in Serbia Regarding the Wars in the Former Yugoslavia in the Light of the Facts Established Before the ICTY

Author(s): Author Not Specified / Language(s): English Issue: 5/2015

Pe urmele generatiei Marii Uniri. Cornel Lutai (1889–1968) – primar al Aradului. Repere biografice

Author(s): Felicia Aneta Oarcea / Language(s): Romanian Issue: 30/2020

An emblematic representant of the generation of the Great Union, dr. Cornel Luțai (1889–1968) was born in Nădlac, Arad County; in November 18, 1911, he became a Juris Doctor at the University in Cluj. Once graduating he applied for a trainee lawyer at Szeged Bar (June 1, 1911–March 12, 1912), and at Arad Bar, working within the offices of advocates Nemet János and Iustin Marșieu up to July 1, 1914. He was invited to take part in Alba Iulia National Assembly in (December 1, 1918) and involved after in the political-administrative life in Arad. As a mayor of this town (1928–1931), he modernized the urban transport, embellished the center of Arad, and joined the neighouring villages; he also backed the cultural life and the deserving young people. The communist times did not absolve him from nationalization. Advocate dr. Corneliu Luțai, perseveringly and tiresomely setting his career, was a visionary mind, an important intellectual, and a reformer at his times. He weaved a worthy of consideration story on him, as well as the whole generation of the Great Union.

Legislation and morals in inter-war Resita

Author(s): Minodora Damian / Language(s): English Issue: 30/2020

Prostitution was taken for a social aspect at the unsubstantial limit between morals and physiologic needs; for issuing a delicate controversy, it was debated through themes concerning some socio-religious principles, blamed for shattering the heterosexual family. They said that it was generated by some pecuniary needs or, simply, as an effect of a behavioral deviation. The unsettled and frequently unwholesome way of life during and after World War I, especially in the case of the rural population, was one of the circumstances that allowed venereal diseases spreading, an imminent way to arise the mortality rate. The immense absorption of human capital fallowing the strong economic development substantially modified the demographic shape in Reșița; massive industrialization and urbanization in the iron working environments implicitly led to some social factions’ convergence in exploiting the working class ‘primary instincts’ for material benefits. The inter-war statistic researches present the existence of two owners of buildings in Reșița, where prostitution was frequently practiced. Family of Francisc and Rosa Crăciun, and Iuliu Bocor held locations nearby which the hypothesis of infantile prostitution and human trafficking was circulating. Daily starvation and sustenance during World War I were malign traces that contributed to inter-war social morals shattering and facilitated so the venereal diseases coming out. To stop prostitution extension, not to permit malign perpetuations, the local authorities, with the support of legal norms, undertook actions referring to the daily life in Reșița, in order to eradicate any tentative of spreading the bad results of carnal desires for mercantile aims. Consequently, approaching such a controversial and long debated theme means discussing about prostitution both as an antithetic element if reported to social, medical and even religious components of community, and a result of a mixture of elements coming from the basic instinct of surviving.

Hungary’s Christian Culture as Subject of Constitutional Protection

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

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

Riflessioni sul diritto di satira e i suoi limiti

Author(s): Gaetano Dammacco / Language(s): Italian Issue: 23/2020

Satire is an extreme paradigm of freedom of expression, but uncertainties exist about its conceptual definition and related legal regime. The development of communication has produced numerous literary figures similar to each other such as the chronicle (an impersonal and non-interpretive recording of events that have occurred), criticism (subjective analysis and judgment relating to events that have occurred) and satire (sarcastic criticism of characters, behaviors and actions of individuals for the purpose of social denunciation). The elements that characterize the satire, developed over the centuries, are essentially twofold: attention to contradictions (of politics, society, religion, culture) and moralistic intent to promote social change. Religious satire affects ecclesiastical power and its contradictions, but it also affects religious symbols and the contents of religions. Different legal consequences follow. When it affects the patrimony of faith of believers it is not acceptable. Religious satire generates a kind of conflict between different constitutional values, that is, between the right to the free expression of thought and the right to the reputation and protection of religious feelings. The right to satire in general is recognized by legal systems (both international and national) as a subjective right of constitutional relevance, which derives from the freedom of expression and thought. In the Charter of Fundamental Rights of the European Union, thought, conscience and religion are homologous (as legal goods or as ethical values). Therefore, thought, conscience and religion cannot be in opposition to each other. Considerable uncertainties exist about the legal discipline of the right to satire, which can never offend the fundamental rights of the person, his dignity and his reputation. The Nice Charter has favored an orientation which considers the right of free expression in its broadest and most expansive form. However, the prevailing value of fundamental human rights has always been affirmed, which cannot be offended by the exercise of the right to satire. The strength of the right to satire consists in the recognition of its constitutional rank, but also in the limits it must have. The jurisprudence has elaborated the “formal” obligations, among which the most important are: continence and functionality.

Ograniczanie wolności religijnej w pierwszym okresie pandemii COVID-19 w świetle orzecznictwa amerykańskich sądów

Author(s): Grzegorz Maroń / Language(s): Polish Issue: 23/2020

The article presents a critical analysis of the U.S. federal court rulings regarding restrictions on freedom of religion during the Covid-19 pandemic. The subject of judicial control were the executive orders prohibiting public religious gatherings or limiting the number of participants. The author shares the view of the part of the courts which assumed that the laws introducing stricter restrictions for churches and religious assemblies than for other comparable places and secular gatherings, in order to be constitutional, need to simultaneously pursue the compelling interest of the state and constitute proportional measures. While the protection of public health is a compelling interest of the government, the total prohibition of in-person church services or limiting religious gatherings to only a few people seem to violate the criterion of the least restrictive measure. When deciding what forms of social activity and businesses to exclude from the ban on public gatherings, the authorities cannot discriminatively assume that religious services are something secondary and not very urgent, especially if the same authorities consider the operation of e.g. liquor stores or shopping malls as “essential” or “life sustaining”.

Ograniczenia zdolności prawnej osób duchownych w pracach kodyfikacyjnych doby Królestwa Kongresowego

Author(s): Piotr Zbigniew Pomianowski / Language(s): Polish Issue: 23/2020

The article focuses on the limitations of the legal capacity of the clergy in the codification work during the era of the Congress Kingdom of Poland. According to canon law, which was largely respected by the courts of the Polish-Lithuanian Commonwealth, the rights of monks and nuns were severely limited in matters related to succession (in particular, as far as inheritance or wills are concerned). Moreover, in light of the fully religious nature of marriage law, persons obliged to celibacy could not, as a matter of course, enter into a marital relationship. Austrian and Prussian lawmakers respected many of the ecclesiastical rules which regulated the status of the clergy. On the other hand, the Napoleonic Code did not place any limitations on the clergy in the realm of inheritance or marriage law. In 1807, the Duchy of Warsaw was established from the Polish lands seized by Prussia where Landrecht of 1794 was in force. In 1809, some lands occupied by Austria were incorporated into the Duchy of Warsaw. The civil code of Western Galicia (a precursor of Allgemeines Bürgerliches Gesetzbuch) was binding within these territories. Soon afterwards, the Napoleonic Code was introduced into both parts of the Duchy. During the Congress of Vienna it was decided that a major part of the Duchy would be transformed into the Kingdom of Poland under Russian control. It was obvious that Emperor Alexander I would reform the secular Napoleonic law of the Kingdom of Poland. While the prohibition of concluding marriages by the Catholic clergy was not questioned, the scope of potential limitations of the legal capacity of monks and nuns was the subject of much debate. The members of the Codification Commission could not come to an agreement whether to change or preserve the French regulations. Finally, Alexander I ordered to introduce them into the Civil Code of the Kingdom of Poland. The article gives a fresh view on the debate as it is based on the analysis of recently discovered materials from one of the Moscow archives.