Legal Ideology and the Commons: Why are Jurists Falling Behind?

Author(s): Filippo Valguarnera / Language(s): English Issue: 2/2018

The last quarter of a century has featured a surge in interest and studies on the commons, spearheaded, of course, by the efforts of Elinor Ostrom. These efforts have problematized the once well-established paradigm of the tragedy of the commons most clearly described by Garrett Hardin in 1968. One could say that the commons, thus, have become a fundamental field of study in most social sciences. This is not the case in the field of legal scholarship (with one noticeable exception that I will discuss later), which leads me to the overarching issue of this essay, namely the difficult relationship between jurists and the commons. The phrase “difficult relationship” does not refer to an explicit antagonism, but to something even worse: complete indifference and a scandalous lack of knowledge. While my main purpose is to try to explain this sorry state of affairs, I also hope to make a more general point on the nature of law and legal change. In this sense, the commons can be considered a case-study in legal theory. The main issue of this paper is to tackle following subquestions. What is the status of commons in the Western European legal discourse? Why do most legal scholars pay such a poor attention to the growing literature on the commons in other disciplines? What factors contribute to this peculiar case of cultural deafness? What promise of improvement does the future hold?

Współczesne metody rozumowań prawniczych w dorobku polskiej teorii prawa – podsumowanie V Zjazdu Młodych Teoretyków Prawa „Teoria prawa między nowoczesnością a ponowoczesnością”, Kraków, 15–18 września 2011 r.

Author(s): Aleksandra Samonek / Language(s): Polish Issue: 2/2011

Działalność naukowo-dydaktyczna Katedry Teorii i Filozofii Państwa i Prawa Uniwersytetu Gdańskiego w latach 2005–2011

Author(s): Kamil Zeidler / Language(s): Polish Issue: 2/2011

Zastosowania filozofii analitycznej w prawoznawstwie: Wprowadzenie

Author(s): Paweł Banaś,Wojciech Ciszewski,Adam Dyrda,Bartosz Janik / Language(s): Polish Issue: 1/2018

Realizm prawniczy a pozytywizm prawniczy

Author(s): Adam Dyrda / Language(s): Polish Issue: 1/2018

American legal realism is commonly treated as a theory-pariah. The article exposes certain reasons explaining such a treatment. Generally, it seems that such an attitude is a result of many misunderstandings of realist aims and ambitions, some of which pertain to the theoretical status of legal realism and its relation to so called general jurisprudential theories, such as legal positivism. In the first part of the article I explain generally what these aims were and how one should see these relations. In the second part I briefly analyze B. Leiter’s famous claim that legal realism is conceptually dependent on hard legal positivism (as a general theory of law). The critique of this claim opens the possibility for some alternative understanding of legal realism.

Aporia Phila z perspektywy teorii aktów mowy

Author(s): Bartosz Biskup / Language(s): Polish Issue: 1/2018

The aim of this paper is to analyze the „possibility puzzle” presented by Shapiro (2011) in the context of the debate between conventionalism and non-conventionalism in speech act theory. Conventionalism claims that for every speech act there is a pattern (convention) which determines its illocutionary force. To perform a felicitous speech act is to fulfil necessary and sufficient conditions for this particular speech act. Non-conventionalism criticizes the view that for every speech act there is a conventional pattern and hidden conditions, which are to be fulfilled. This view maintains the conventional thesis for the so-called strict conventional speech acts (e.g. performatives), but negates using universal quantifier for so-called communicative speech acts whose aim is, in short, to express an intention and force someone to act by virtue of this intention. As in (Shapiro 2011), Phil said: in order for someone to have the power to make, change and apply rules, there has to be a rule that empowers someone to do so. This objection concerned „The First Legislator” only from the conventional perspective on speech acts. If it can be maintained that The First Legislator’s speech acts may be non-conventional, then Phil’s argument misses the point. Finally, I will emphasize that only lawyers analyze „the very first speech acts” whereas for philosophers, the problem of e.g. „the very first question” is less absorbing.

ВРЕДНОСНА „МЕТАМОРФОЗА“ ПРАВА

Author(s): Marko Trajković / Language(s): Serbian Issue: 63/2012

The value “metamorphosis” of law presents the change from the pure law positivism, expressed in the pure form of law, into the axiological view of the law as the science, as well as a social phenomenon “happening on the daily basis”. Value “metamorphosis” of law presents the axiological recognition of the reality and the values which are gathered in the legal norm which “has been passing” through the centuries of the legal positivism.

БИОЕТИЧКО ЛИЦЕ ПРАВА

Author(s): Vojislav Đurđić,Marko Trajković / Language(s): Serbian Issue: 62/2012

Nowadays law is unjustifiably separated from bioethics, thereby making the normative solutions it offers seem like the expression of the legal positivism. Surely, this doesn’t do damage only to law but to the complete spectrum of sciences, which in many-sided perspective are involved in solving the bioethical issues. Legal positivism seems to want to separate law and to present it as the simple legal technique of the standardizing bioethical issues. Then what is left of law? The answer to this question will depend on the aspect of considering the issues. If we consider the entire problem of relationship between bioethics and law from the point of view of legal positivism, the relationship will be boiled down to short positive legal standardization and solving the bioethical issues. Bioethical reality then, in the inadequate and short way, gets the legal clothing which is quickly “torn”. If this relation is considered by means of value aspect we will get the quiet and long-lasting way of solving bioethical issues which will not be boiled down to simple legal standardizing but will follow the path of long-lasting solutions. These solutions of the criminal-law theory, the theory of law, and legal ethics offer not only the long-lasting but also the more adequate protection of man, who is not approached as means but as the purpose. That’s the core of every humanistic perspective of viewing the man, which certainly includes law and bioethics.

Równość płci i przemoc wobec kobiet. Próba wyjaśnienia tzw. paradoksu nordyckiego

Author(s): Magdalena Grzyb / Language(s): Polish Issue: XL/2018

According to the prevailing assumption, the main cause of violence against women isa structural inequality between men and women. That idea is common in internationalhuman rights discourse, widely accepted on political level and enforced by severalscientific studies. The structural nature of violence against women means that it isgender-based violence and one of the crucial social mechanisms by which womenare forced into a subordinate position compared with men. It is a manifestationof historically unequal power relations between men and women which have led todomination over, and discrimination against, women by men, and have prevented fulladvancement of women.Logically thinking, achieving gender equality would lead to the elimination ofviolence against women. Respectively, in societies with greater gender equality, wherewomen enjoy better rights, have a better footing towards men, greater legal protectionand access to power, they also should be less vulnerable to violence based on theirgender. The most gender-equal countries in the world are Scandinavian countries –Sweden, Norway, Iceland, Denmark and Finland.Yet, the recent EU-wide victimisation survey on violence against women (FundamentalRights Agency 2014) produced startling results. It turned out that the highestrates of violence against women (in almost every single aspect, intimate partner violenceand non-partner violence) were reported in the Nordic countries, particularly in Sweden,whereas countries considered traditional and conservative, e.g. the Mediterraneancountries or Poland, revealed a lower prevalence of violence against women. The FRAresults on Scandinavian countries were coined the “Nordic paradox”.The main problem is this: is really gender equality a factor reducing or increasingthe likelihood of violence against women’s victimisation? Is the subordinate positionof women typical of more conservative societies a protective factor against violenceagainst women? And are actually the FRA study results sufficiently reliable to drawsuch conclusions?The first section of the paper discusses the FRA results regarding the Scandinaviancountries and presents it against a larger picture of gender equality indicators. Thenext section examines the possible explanations for differences between countriesoffered by the authors, which are mainly methodological and contextual ones, such as:cultural acceptability to talk with other people about experiences of violence againstwomen, higher levels of disclosure about violence against women in more gender-equalsocieties, patterns of employment or lifestyle or levels of urbanisation, differencesbetween countries in the overall levels of violent crime and drinking habits in particularsocieties.The third section reviews the previous research findings, looking at the relationshipbetween gender equality or women’s status and violence against women. There are twochief hypotheses tested in the studies: the ameliorative hypothesis (violence againstwomen will fall along with greater gender equality) and the backlash hypothesis (ifwomen remain in their subordinate position, men are less threatened and less likely toresort to violence against them). Overall, the studies showed mixed results, dependingon the used measures. Furthermore, most of the them were conducted on the US data,and their application to the European context is doubtful.The final section presents some theoretical explanations from the critical sociologyfield. The three most relevant theories suitable to explain the “Nordic paradox” andthe relationship between gender equality and relatively high rates of violence againstwomen include the variety of patriarchy theory of G. Hunnicutt, the hegemonic masculinities of R.W. Connell and J. Messerschmidt and the symbolic violence ofP. Bourdieu. All of these theories critically frame the use of violence by men as a meansof upholding their superior position towards women.

Korelacja pomiędzy agresją wobec zwierząt a agresją wobec ludzi w świetle badań aktowych

Author(s): Joanna Narodowska / Language(s): Polish Issue: XL/2018

Brutalisation of crimes involving violence, as well as crimes connected with physicaland verbal aggression in public life can be observed in the Polish society. At the sametime, the media inform about these pathologies in diverse ways. The problem of crimesinvolving violence against individuals is a classic area of criminological research. InPolish criminological literature, problems associated with violence towards animalsare set aside from the basic considerations concerning the problem of violence. Itis noted that this theme is the subject of many English-language publications. InAmerican criminological literature, it is indicated that the perpetrators of abuse(perpetrators of domestic violence) also use violence against domestic animals as socalled“substi tute objects”. There is no indigenous empirical research confirming orfalsifying the hypothesis on the existence of such a correlation. Therefore, the main aimof this work was to define, on the basis of the results of the author’s research, ifthere is any relationship between the phenomenon of aggression towards animalsand propensity for agression towards people. Moreover, the author formulatedthe following research problems: have the perpetrators of crimes involving cruelty toanimals been previously convicted, particularly for any crimes of aggression? Whatkind of crimes were they? Is it possible to specify the common features that characteriseperpetrators who use violence against animals and people? What factors play a leadingrole in the criminogenic process concerning perpetrators of crimes of aggression?The work is divided into five parts. The first, called “Introductory Matters”, offersa review of the status quaestionis and definitions of the basic concepts which appearin the subsequent parts of the paper (violence, aggression, legal status of animals,cruelty to animals). The second part summarises the methodology of the author’sresearch. The applied research method involved researching documents, done by usingthe records research technique (indirect observation). The research tools includedthe author’s questionnaire of records research consisting of 34 questions grouped in fivecategories: preparatory proceedings, court proceedings, trial (the first and the secondinstance), the perpetrator’s deed, the victim of crime, the perpetrator of crime. Thesubject of analysis covered the contents of the court records in criminal cases with legalvalidity concerning Article 35 of the Act on the Protection of Animals. Therefore, onlythe finalised court proceedings were researched. The research included 59 criminalproceedings instituted against 61 persons accused of a prohibited act in the formof animal killing or violence against animals. The research was conducted in the firsthalf of 2017 in the District Court in Olsztyn (2nd Criminal Department and 7th CriminalDepartment). The time range of the research included the period 1997–2016, i.e. sincethe entry into force of the Act on the Protection of Animals until the end of the research, considered as full calendar years. The author researched all criminal cases that endedwith a final judgement. On the basis of the established criteria, criminal cases wereselected in which the relationship between the use of violence by perpetrators towardsanimals and people was ascertained. Further analysis was applied to 23 criminal cases,in which 21 perpetrators were convicted. The third part discusses the research results.The data collected for the purposes of criminal proceedings have provided basic informationconcerning the gender and the age of the perpetrator, his/her education, maritalstatus, employment, prior criminal history, legal qualification of the committed crimesand the statement whether the perpetrator was under the influence of alcohol or drugsat the time of committing the crime. On the basis of personal and cognitive dataof the perpetrators of crimes punishable under Article 35 of the Act on the Protectionof Animals and the forensic and psychiatric opinions drawn up for the purposes ofcriminal proceedings, the characteristics of the studied population were presentedand the factors that could play an important role in the genesis of acts of aggression(risk factors) were identified. In the fourth part, the selected criminological theoriesexplaining the reasons for the aggressive behaviour were referred to specific casesof the examined perpetrators. The work ends with a conclusion which provides a verificationof the researched hypotheses for the purposes of the paper.

DESPRE TRIADA ȘTIINȚĂ-METODĂ-DREPT

Author(s): Ion Craiovan / Language(s): Romanian Issue: 35/2018

The understanding of the defining features of contemporary science decisively controls the way in which we conceptualize the legal knowledge - the particular type of knowledge, as well as the practical legal approach. Also, from the methodological experience of philosophy and science can be retained an inventory (of course partial and relative) of gross-modo methodological rules, with repetitive, interdependent, interfering, complementary, but also opposing elements, impracticable as such. But we think that this methodological exercise can offer suggestions and potentials to the jurist's own approach, which according to their context and objectives must filter, select, build their own methodological standards, revise, innovate, being open to theory and practice , so not infallible, but vulnerable, but always perfectionable. Legal science is set up in a complex, relative, multi-level and multidimensional manner through the contribution of the experience of the legal system but also of the multi-inter-trans-disciplinary network of contemporary knowledge.

D. 48, 2, 3 I ART. 332 K.P.K. – UWAGI PRAWNOPORÓWNAWCZE

Author(s): Wojciech Jan Kosior / Language(s): Polish Issue: 22/2018

Comparison of indictments, one of which was in force in ancient Rome and the second onecurrently operating in the Polish law, shows us that despite the time difference counted in hundredsof years, we can find elements common for both indictments. The Roman and Polish indictments notonly have a common structure consisting of an introduction, a proper part and a signature, but aboveall – which requires special mentioning – they set the same requirements as to clarify the accusationand description of the violator’s behavior. It should also be noted that the Polish indictment hasevolved from the German institution which had ancient Roman roots. In order to summarize – it canbe concluded that Roman solutions constituted a background for the development of the indictmentmodel which is currently in force in the Polish law.

Право на еутаназију у правном поретку Републике Србије

Author(s): Božidar Banović,Veljko Turanjanin,Emir Ćorović / Language(s): Serbian Issue: 2/2018

In this work the authors explain the problem of deprivation of life from compassion as one of the most complex legal, medical, religious, ethical and social issues. Although it is not disputed that a number of debates around the world are being conducted on this subject and that attention is paid to it, depending on the state to the state, and the culture which the country concerned belongs. The right to life is one of the most important human rights, guaranteed by a number of international and national laws. However, the actual issue in recent years is whether a man, besides that right, has a right to die with dignity. The legislators through the centuries consistently moved the line that separates permissible and impermissible deprivation of life from mercy, either to legalization either towards a complete ban of euthanasia. This issue becomes more relevant if we consider the fact that modern technology allows the extension of life of the terminally ill patients, which can mostly be viewed as positive, but, in some cases, may have resulted to an extension of unbearable suffering of patient. In the most European legislations legislators regulated euthanasia as a privileged form of murder. Such case is in Serbia. Euthanasia is seen as murder, but with specific characteristics, which are primarily related to the absence of opposition from the injured to deprivation of one’s own life and existence of his request or such action. The crime of deprivation of life out of compassion is independent from the crime of murder. The authors approach this issue from a different point of view, linking several different issues into one whole. In the first place, the authors explain the criminal offence of deprivation of life from compassion from the Serbian Criminal Code, and then turn to the explanation of the right to death with dignity envisaged by the Draft of the Civil Code, which inevitably, by adopting this Code, would lead to changes in the Criminal Code. In the end, the authors give the results of the empirical research carried out in the Clinical Hospital Center in Kragujevac in relation to the subject matter.

Marko Kmezić (2017) EU Rule of Law Promotion: Judiciary Reform in the Western Balkans. London: Routledge. 186 pages

Author(s): Adnan Kadribašić / Language(s): English Issue: 2/2017

ПРИМАРНЕ И СЕКУНДАРНЕ НОРМЕ КОД НОРБЕРТА БОБИА

Author(s): Suzana Medar / Language(s): Serbian Issue: 54/2009

Norberto Bobbio is the most important legal scholar and exponent of the Italian school of analytical legal theory. In his jurisprudential opus, he makes a distinction between primary and secondary legal norms. He describes them as norms of the first degree and norms of the second degree; the former comprise the norms on human behavior whereas the latter include the norms on norms. The second degree norms incorporate norms on sanction and norms on the production of laws. Beside these norms, in the structure of any normative system, he also identifies the norms for the identification of norms. Depending on the presence of certain kinds of norms in the normative system, Bobbio distinguishes among simple, semi-complex and complex normative systems. In his work, he focuses on the legal system as a complex normative system, which includes not only norms for the identification of normative systems and primary norms but also both types of second degree norms.

ТЕОРИЈСКОПРАВНИ ПРИСТУП ОДРЕЂЕЊУ ПРАВА

Author(s): Marko Trajković / Language(s): Serbian Issue: 54/2009

In order to define the law it is indispensable to look into its normative, valued and sociological dimension. The fact that law is defined as the system of norms regulating human behavior points to the necessity of studying the normative dimension of law. However, law is the concept of reality related to the value, or it is the reality with purpose to serve the value. This means that the positive law has to be right as far as the content is concerned, and vice versa, the right law has to be positive. From the sociological standpoint, law is considered to be the system of norms which are applied in society. Thus, law is at the same time defined by its social function, thereby the definition of law is wider. Law no longer belongs to the special world of norms, but to the holistic totality. The relation between normative, valued and sociological element of law points to the necessity of the integral study of law. Law is the system of norms pervaded by ethics, by means of which legal and social values are being realized in society.

A. Vaišvilos siūlomos teisinio personalizmo teorijos ir metodo klausimu: kritinė studija

Author(s): Petras Ragauskas / Language(s): Lithuanian Issue: 74 (4)/2011

The article provides criticism of theory and method proposed in the monograph of prof. Alfonsas Vaišvila. The author of this article has a notion that a research work proposing particular conception, theory or method may be evaluated taking into account the following aspects: to what extent the provided conceptual constructs are systematically completed, comprehensive and suitable for use, as well, how precisely, interesting, informative and originally the material reasoning and explaining the ideas is submitted. Hence, the criticism of the monograph provided for in the article is based on evaluation of adaptability and versatility of the proposed constructs, as well doubts arising during the analysis whether the construction of the conception is correct (first of all, the reasoning, and at the same time – reliability). Upon the discussing in detail particular shortcomings of the monograph, the conclusion is that the material provided is not convincing upon any of the previously mentioned aspects. Notwithstanding the declared aim, the work fails to provide a solid systematic theory. Although the method is proposed, too many exceptions are to be made. It is very important, that these exceptions seem to be formulated in a rather arbitrary way. The proposed method also lacks freshness, as it repeats and develops not only the previous publications of the author of the monograph, but as well ideas of other authors (particularly, of Karl Marx and Rudolf von Jhering). And the “achievements” of states which apply (for example, China) or which did apply the method are not inspiring at all (at least in the field of human rights). Evaluating the presentation of the material it was noticed that the work is penetrated with personal attitudes and contains factual mistakes, inaccuracies and other indecorums. Although there are some new, interesting elements, they do not prevail. As well, it is very important that the monograph raises additional ethical doubts, related with stimulation of intolerance and discrimination, which significantly reduces the versatility of outlook of the proposed conception (particularly the authentic application thereof). Presumably the majority of supporters of contemporary human rights concept will regard the conception of prof. Alfonsas Vaišvila as merely unacceptable.

МОРАЛНИ РЕЛАТИВИЗАМ У АНГЛО-АМЕРИЧКОЈ ЈУРИСПРУДЕНЦИЈИ

Author(s): Marko Trajković / Language(s): Serbian Issue: 50/2007

According to the main request of the Positivists, the Theory of Morality shouldn't be taken into consideration while enacting the law. Thus, law should be freed of any influence of morality. Therefore, Posner believes that law shouldn't be studied from the point of view of the Philosophy of Morality. It should be considered from the pragmatic standpoint. Moral theorizing cannot contribute to the development of the legal science. Hart believes that the conceptual unity between law and morality is wrong and he names it "phantom". As said by those two, the Philosophy of Morality has nothing to offer to the learned lawyers or judges when passing judgement, or establishing legal doctrines.This attitude either leads to the posthumous future or takes us back to the horrors of Nazi regime. It is easy to realize that the assumption is outdated. Legal regulations cannot be simply identified with the compulsion. Thus, something downright immoral cannot be accepted as the law.

ПОJAM ПРАВА У ПРИРОДНОМ ПРАВУ ЈОВАНА СТЕРИЈЕ ПОПОВИЋА

Author(s): Miroljub Simić / Language(s): Serbian Issue: 48/2006

The author analyzes Sterija's notion of law in an objective and eulogistic sense. It concludes that Sterija has defined the notion of justice in the spirit of the natural (intellectual) law of the Kantian orientation.In this paper, the author analyses Sterija's definition of law in view of its objective and subjective aspect. Sterija associated law with freedom, perceived in the best spirit of Kantian natural law (law of reason). From the perspective of individuals, law implies the subjective right to do or not to do something, but the concept of law also includes the objective duty to preserve the social community. Thus, law implies the limitation of freedom which may also include some force and coercion, aimed at preserving the freedom of others. Sterija also makes a clear distinction between law and morality.

ПРИРОДНО ПРАВО И МОРАЛ У ДЕЛУ ЈОВАНА СТЕРИЈЕ ПОПОВИЋА

Author(s): Marko Trajković / Language(s): Serbian Issue: 48/2006

As a proponent of Kant's conception of natural law and moral, Jovan Sterija Popovic deserves the credit for the development of legal science and education in Serbia in the course of the natural law theory rather than in the course of legal positivism.In his opinion, natural law is general, universal and permanent, and does not depend on positive law. On the grounds of his belief that natural law was the pattern used by constitution-framers, judges and law- interpreters, Sterija opposed any kind of authoritarianism and positivism. Natural law is the basis of positive legislation; that is how natural law becomes effective. Thus, Sterija accepted the idea - which was later to be developed by many other legal philosophers - that natural law has to be effective whereas positive law has to be (morally) right; that is how natural law becomes applicable. Sterija also developed the idea that there is a connection between natural law and human dignity, which makes natural law applicable in the field of international law owing to the fact that the right to human dignity has supremacy over all other rights.Although he made a clear distinction between natural law and ethics, by his definition of the proto-law (principal, ultimate law) Sterija falls into the group of legal scholars who perceive the correlation between natural law and morality. The interrelatedness is made prominent in the definition of the proto- law, which is designated as the right of man as a moral being to preserve the personal human dignity.Sterija's idea of natural law and ethics has served as the foundation for the development of Serbian legal science.