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.

An Essay on the Mind-Brain Problem and Legal Proof

Author(s): Drozdstoy St. Stoyanov / Language(s): English Issue: 1/2018

The aim of this paper is to highlight the rationale behind the use of data from neuroscience, particularly neuroimaging, in psychiatric legal expert procedures and their interference with the mind-brain problem. The critical argument is that the employment of mental health evaluation of the defendants and/or witnesses as collected with clinical assessment methods in court proceedings should not be considered irrespective to the data from neuroscience. Essentially, neuroscience methods belong to the domain of nomothetic (natural explanatory) knowledge, whereas clinical evaluation methods in psychiatry belong to the domain of intra- and inter-subjective narratives. There exists an explanatory gap between those two groups of disciplines which concerns the ability to translate and integrate data across diverse methodological and terminological systems. Furthermore, it depends largely on the implicit positions in the mind-brain debate and the brain-to-behavior connections, which reflect on the professional and legal reasoning in terms of prioritizing certain solutions or approaches over another in the expert judgements. There are described those tacit positions adopted in the mind-brain debate by different traditions in psychiatry, with special emphasis on reductive and non-reductive forms of physicalism. In conclusion, a cognitive pluralist stance is adopted which sets priority for the supervenience theory of mind.

Naturalizing the subjective side of the crime: a few introductory remarks on the role of consciousness in criminal law based on American and Polish examples

Author(s): Bartosz Janik,Maciej Próchnicki / Language(s): English Issue: 1/2018

Advancements in neuroscience cast new light on the functioning of the human mind. This is especially important within the context of criminal law, wherein consciousness plays a crucial role in determining criminal responsibility. Yet, there are some caveats in the direct application of these new findings, most of which are related to the specific conceptual framework of law based upon common sense knowledge and (sometimes) outdated psychology. This framework has also produced different doctrines of interpretation in the systems of common and civil law. Moreover, the goals of the law are to some extent different from scientific research on the brain. The aim of this study is to assess to what extent and under what interpretation scientific knowledge concerning consciousness might be useful for legal purposes, especially for the criminal law. Our assessment is that most of the current concepts of criminal law are directly related to outdated psychological and neuroscientific theories, and that the content of those concepts should be updated according to the newest scientific findings while remaining in accordance with the primary functions of criminal law.

Applying Confirmation Theory to the Case against Neurolaw

Author(s): Anton Donchev / Language(s): English Issue: 1/2018

Neurolaw is the emerging research field and practice of applying neuroscientific knowledge to legal standards and proceedings. This intersection of neuroscience and law has put up some serious claims, the most significant of which is the overall transformation of the legal system as we know it. The claim has met with strong opposition from scholars of law, such as Michael Pardo and Dennis Patterson (2011), who argue that neurolaw (and neuroscience more generally) is conceptually wrong and thus perceive most of it as “nonsense” (Patterson, 2003). I expose a flaw in Pardo and Patterson’s arguments by means of confirmation theory. My main point is that Pardo and Patterson use implicit hypothetico-deductivism in their attack on neurolaw, and that we have good reasons to doubt the employment of such a model, because it faces serious theoretical problems. I then demonstrate how the alleged problems associated with neurolaw disappear if we use a quantitative probabilistic account of confirmation. I also explain why it provides a better account for the way the legal system actually works.

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.

КОМЕНТАРИ ПО ТИТУЛ XVI (DE LEGITIMA SUCCESSIONE) ОТ COLLATIO LEGUM MOSAICARUM ET ROMANORUM

Author(s): Francesco Lucrezi / Language(s): Bulgarian Issue: 1/2020

The essay is focused on the XVI titulus of the Collatio legum Mosaicarum et Romanarum, dedicated to the matter of the legacy without testament (de legitima successione) in biblical and Roman law. Regarding Hebrew law, the text of the book of Numbers (36:1–7) is taken in specific consideration, in the Latin translation included in the Collatio. In this passage is narrated the particular case of the Tselofchad’s daughters, who were allowed to inherit by their father. Also the verses of Deuteronomium (21:15–17) about the privilege of the first-born (bekhor), the dispositions of the Baba Bathra treaty of Mishnah and Babylonian Talmud and the expositions offered in the De vita Moysis of Philo Alexandrinus are studied. In the essay, these sources are compared with the legal responsa dedicated, in the title, to the roman system of successio ab intestato, and demonstrate the great differences between the Jewish and Roman rules of inheritance mortis causa. These factual data are in contrast with the unreal image of a similitude or analogy (never existed in the reality) between the two systems that is reported in the Lex Dei for an ideological purpose.

JURISTENLATEIN. EINE FACHÜBERSTZERISCHE ÜBUNG: LATEIN – DEUTSCH – RUMÄNISCH

Author(s): Oana Florina Avornicesei / Language(s): German Issue: 1/2018

Latin is the linguistic and doctrinal heritage of the legal systems in a number of European states, among which there are the German and Romanian legal systems. A lot of Latin legal words still survive today and a lot of Latin legal principles are still in use today, both underlying the thought of how legal matters are settled and the language in which justice is served today. Despite the fact that the languages of the respective legal and judicial systems are German and Romanian, a lot of reference to the Latin tradition and wisdom is made nowadays, in the pursuit of justice. The collection includes legal proverbs, maxims and rules organised around three specialised legal root-terms, and it is intended as an introduction into the Latin language and thought underlying the contemporary German and Romanian legal systems.

Challenges for the Future of the Legal Profession in Romania

Author(s): Mirabela METZLER,Caius Luminosu / Language(s): English Issue: 1/2020

Innovation drives change in many aspects of life, but the particularity of legal services must be considered when making changes, in order to satisfy the need to innovate and maintain professional standards. The research is focused on observing regulatory requirements, the economic aspects of legal activities and deontological issues that arise from practicing law in Romania. Besides the interdisciplinary analysis (European Union legal framework, national legislation) and multidisciplinary approach of the concept of legal services market (from the perspective of economics, deontology and regulations) the paper addresses national bibliographic deficiencies with numerous references of legal developments in other countries. The aim of this study is to prepare for innovation by discussing global trends and professional challenges that the legal profession is facing in Romania.

The dangers of controlling memes through copyright law

Author(s): João Paulo Capelotti / Language(s): English Issue: 3/2020

Intertextuality plays a great role in the production and comprehension of various forms of humorous expressions, such as parodies and memes. The latter often rely on previous facts, images, videos, statements etc., to express a certain comic idea. Nowadays, memes and parodic videos are not just made by comedians, but also by ordinary people on social networks, mostly using images, videos and gifs found in search engines like Google. However, attempts at regulating the use of such materials, particularly from the point of view of copyright, threaten the freedom of this sort of humorous expression. The article discusses a case from Brazil in 2017, when the then President Michel Temer tried to stop the unauthorised use of his image in the creation of memes, stating that the pictures in the Presidency’s website were available for journalistic purposes only, and any other use needed the government’s consent. This strange situation, that could give the president the power of approving the satire made at his expense, was itself the subject of various memes, which ultimately forced the government to step back. The article then discusses similar risks of a directive recently approved by the European Parliament, which, under the flag of protecting copyright, may have a controversial chilling effect in the creation of memes and satiric videos.

СОЦИАЛНА ЗАЩИТА ПРИ МАЙЧИНСТВО В СКАНДИНАВСКИТЕ СТРАНИ

Author(s): Mariya Mancheva / Language(s): Bulgarian Issue: 4/2020

The Scandinavian countries are known for their model of social policy and advantageous environment for starting a family and children. Solidarity is the basic principle based their system of social protection. Achieving, to a large extent, gender equality in the region concerned allows for the development of parental leave schemes, not only legally but lso in practice. This article analyzes the possibilities for maternity, paternity and parental leave, linking the impact on women's employment.

The Polish Civil Status Registration System – the Longue Durée of the Prussian Idea

Author(s): Hadrian Ciechanowski / Language(s): English Issue: 2/2020

In the article, the author writes about his conception of the longue durée of the civil status registration system in Poland. Its modern history began in 1874 while the Prussian administration established State and secular registry office at the territory of the West Prussia. The basic principles of the civil registration system are its secular state character, the corpus of information gathered about citizens and its connection with the lowest level of local administration. The most surprising and unknown is that they have not been changed by communist and even after 1990 in free Poland until today. The Prussian model of registration has survived two wars and several changes in the political system and statehood as well as the digital revolution. The article is based on legislation, historical and administrative literature and archival holdings. During the research, the author used historical methods, first of all, bibliographic and comparison methods.

Roberto Saviano, czyli rzecz o kalaniu własnego gniazda i jego konsekwencjach

Author(s): Weronika Korzeniecka / Language(s): Polish Issue: 1/2020

Roberto Saviano is an Italian writer and investigative journalist who has been living under strict police protection for thirteen years. He wrote Gomorrah, a bestselling book, that drew the mafia’s attention and resulted in a death sentence. Life in hiding is a price he pays for revealing the harsh truth about the activity of Neapolitan Camorra. The aim of this paper is to investigate what drives his uncompromising pursuit for truth, the strategies he uses to achieve this aim, and the response to his approach, coming from Italian politicians, intellectuals, ordinary people, and international general public.

Nacionalizacija čehoslovačke imovine u Federativnoj Narodnoj Republici Jugoslaviji na primjeru firme Bata

Author(s): Dalibor Savić,Milan Balaban / Language(s): Bosnian Issue: 7/2020

The paper analyzes the process of nationalization of Czechoslovak property in the Federal People’s Republic of Yugoslavia immediately after the Second World War — from liberation from the Nazi occupation to mid-1949. In this context, through the application of the research strategy of the case study (based on the analysis of secondary literature and unpublished archived documents), the authors pay special attention to the historical, sociological, political, economic and legal aspects of the most significant events related to the confiscation of Bata property. The results of the research indicate that despite certain specifics, the nationalization of the property of the Bata Company in the Federal People’s Republic of Yugoslavia is a typical case of the attitude of the communist authorities towards foreign capital.

Kinga Bączyk-Rozwadowska, Prokreacja medycznie wspomagana. Studium z dziedziny prawa, Wydawnictwo TNOiK – Dom Organizatora, Toruń 2018, ss. 807

Author(s): Ewa Bagińska / Language(s): Polish Issue: 2/2020

Dispute Resolution That Divides: The EU-USA Conflict on Investment-State Dispute Resolution

Author(s): Judit Glavanits / Language(s): English Issue: 3/2020

Investment-state dispute resolution has been a hot topic recently, as we can observe a shift in the international trade agreements – both on the side of politics and economics. The European Union has started to negotiate several new trade agreements – some succeeded, some failed, and among the latter we find the TTIP with the USA. This article focuses on the neuralgic point of ISDS in the trade policy of the EU and the USA and summarizes the arguments for and against the ISDS mechanism reflecting also on the latest scientific literature and statistics.

Political and Economic Feasibility of Contracted American Liquefied Natural Gas for Energy Security in Poland and the Baltic States – Can the American Government Help?

Author(s): Christopher Kulander / Language(s): English Issue: 3/2020

At the heart of the European Union (“EU”) energy policy is energy security. Energy security is maintained, in part, by a diversification of supply. Despite the fact that the EU has prioritized diversification, its dependency on Russian natural gas has increased in recent years. Contemporaneously, the politicalrelationship between the EU and Russia has worsened. Construction of NordStream 2(“NS2”) will further establish Russia as the dominant supplier of natural gas to the EU while lessening the diversification of its energy supply. To further the EU’s stated goals of energy diversification and security, another steady source of natural gas imports for the countries along the Baltic Sea is needed. LNG importation assets in Poland and the Baltic states exist for this purpose. Unlike other EU members, these countries have demonstrated the economic and political will to curb the coercive influence of Russian natural gas imports. America is awash in natural gas, with plenty for export and can sendincreasing volumes of LNG worldwide. In contrast to other sources, America is well located to supply Europe with secure LNG, and its importation should be a shared goal of the EU and America. Despite the desire of some American statesmen to use the “shale gas revolution” to further U.S. geopolitical goals; however, the U.S. hydrocarbon industry (unlike in Russia) is overwhelmingly controlled by private landowners and industry. The goal oft he American, Polish, and the Balticstates should therefore be narrowly focusedon establishing free trade agreements and the encouragement of longer-term contractual relationships between America and Poland and the Baltic states.

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.