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EGALITATEA DE ȘANSE

Author(s): Oana Voica Nagy / Language(s): Romanian Issue: 28/2022

In this paper we propose an analysis of the equality of opportunities from different point of views, starting with the internal regulations and continuing with the international ones, in the domain of fundamental human rights. Equal opportunities, recognized to all people as fundamental human right is a topical issue. The United Nations as well as the European Union continuously fight against inequalities. Achieving equal opportunities for categories of vulnerable people is one of their main goals, which is included in their Agendas. In order to identify the steps taken in this matter, at national and international level we will analyze the legal dispositions adopted by the Romanian legislator, then the regulations contained in international conventions and finally the reports, the proposed work agendas and communications made by the mentioned international organizations, but not only. To be able to draw some pertinent conclusions, we will also perform a parallel between the efforts of the national authorities in comparison with those of the international institutions and organizations. Also, we intend to find out to which extent the proposals of international bodies are implemented internally.

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CONSIDERATIONS REGARDING THE ECOLOGICAL CRIMES IN THE ROMANIAN CRIMINAL LAW

Author(s): Constantin Burețea / Language(s): Romanian Issue: 29/2022

Nature can remain a healthy environment only if human intervention in the process of symbiosis is reduced to its knowledge and use of this knowledge without unbalancing the planetary ecosystem which, as a result of a work of divinity or the result of a long process of continuous transformation, works after laws that do not need to be changed, or at least do not need to be drastically changed. The protection of the environment through criminal law acquires existential values, and these values must be understood, first of all, by the regulatory authorities, in order to be later reflected in effective legal instruments respected by all the recipients of these regulations. Broadly speaking, the national legal framework in the field of environmental criminal law is insufficient and inadequate in relation to the importance of social values to be defended, so it is necessary to try to identify legislative gaps and their subsequent coverage by the legislator in order to build the concept of "Environmental Criminal Law" that should be better individualized and more effective in protecting the environment.

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LEGAL ACTIONS AGAINST GOVERNMENT ORDINANCES

Author(s): Silviu-Gabriel Barbu,Cristina-Maria Florescu / Language(s): Romanian Issue: 29/2022

The Romanian legislative system allows, through a special procedure, the removal of the effects of some normative acts - the ordinances adopted by the Government, which directly harm a legitimate right or interest of a person. In this paper we will focus on the specifics of this procedure for guaranteeing the rule of law and for counteracting the illegal normative acts of the Executive.

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PRIVIRE CRITICĂ ASUPRA PROCEDURII EXECUTĂRII HOTĂRÂRILOR INSTANŢELOR DE CONTENCIOS ADMINISTRATIV

Author(s): Silviu-Gabriel Barbu,Cristina-Maria Florescu / Language(s): Romanian Issue: 30/2022

The paper underlines some practical difficulties in the enforcement of the administrative courts decisions and proposes de lege ferenda using a fair balance between the interests of the individuals and of the public authorities.

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CONSIDERATIONS REGARDING THE PATRIMONIAL LIABILITY OF PUBLIC AUTHORITIES IN ADMINISTRATIVE LITIGATION, ACCORDING TO LAW NO. 544/2004 PROVISIONS

Author(s): Eugenia Iovănaş / Language(s): English Issue: 30/2022

According to the provisions of Law on Administrative Litigation, the characteristics of the patrimonial responsibility for the damages caused to individuals implies the fulfillment of several legal conditions, i.e: the existence of an illegal administrative act, or the denial to meet right request, the existence of a patrimonial lesion, the existence of the causal relationship between the administrative act and the patrimonial damage, and the fault of the administrative authority. If these distinctive features, that each of the afore-mentioned general conditions presents, are compared to the general conditions of civil and tort litigation, the basis of administrative liability for damages, caused by the public administration authorities arises.

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COMPILATION OF CIVIL STATUS DOCUMENTS ACCORDING TO THE NEW PROVISIONS CONTAINED BY LAW NO. 105/2022

Author(s): Oana Voica Nagy / Language(s): Romanian Issue: 30/2022

The paper proposes an analysis of the new regulations provided by the Law no. 105/2022 which completes the Law regarding the civil status documents issued in 1996. The new regulations bring a series of modifications in the domain of civil status documents that aim to clarify and eliminate any gaps that may existed until now. The legislator also aimed to adapt the legislation in this domain to the realities of the society. The development of technology created a series of situations that were not legally regulated therefor the legislator needed to step in and stop various practices which, although were not illegal, created difficulties in the normal development of the civil status officer’s activity.

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THEORY OR PHILOSOPHY OF LAW?

Author(s): Jan Woleński / Language(s): English Issue: 2/2023

The article discusses the theory of law in terms of the extent to which it is part of jurisprudence, on the one hand, and a philosophical pursuit, on the other. The question is explored considering the historical development of the legal sciences and the situation of Polish theory of law in the latter half of the twentieth century. Also, the author relies on the analysis of selected theoretical-legal concepts, notably the so-called multiplane theory of law and the views thought of Zygmunt Ziembiński. The conclusions suggest that philosophy is inevitable in jurisprudence.

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A DEVELOPED CONCEPTION OF THE SOURCES OF LAW: THE CONTEXT OF THE ROLE OF POLITICAL JUSTIFICATION, CUSTOM AND PRECEDENT

Author(s): Leszek Leszczyński / Language(s): English Issue: 2/2023

The study analyses the ‘developed concept of sources of law’ created by Zygmunt Ziembiński in the second half of the 1960s, which was extremely important in Polish legal theory. Its main feature is a departure from the exclusivity of treating legal regulations as a source of law. While legislative competence plays a primary role in the conception, the inclusion of a norm in the system of law is also determined by other factors. The most characteristic in this context is the presence, in addition to the rules of exegesis (interpretative, inferential and conflict-solving), of three other factors discussed in this paper: political justification (legitimizing the legal system as a whole), customs (social norms introduced into the legal system by judicial decisions) and precedent (confirming an extra-legal norm or creating a legal norm after the acceptance of such an act by legal doctrine). This is why the concept not only breaks the positivist theoretical-legal paradigm, but also creates a realistic picture of the sources used in the decision-making processes of applying the law.

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VALUES IN ZYGMUNT ZIEMBIŃSKI’S THEORY OF LEGAL INTERPRETATION: SOURCES

Author(s): Marzena Kordela / Language(s): English Issue: 2/2023

The early phase of Zygmunt Ziembiński’s theory of law interpretation was developed between the late 1950s and early 1970s. From the very outset, values would feature permanently in the theory as components of the axiological system of the legislator. Certain values, such as legal certainty and the correspondence between law and social life, became central to two interpretations: static and dynamic interpretation, respectively. Ziembiński was the first Polish legal theorist to define functional interpretation as a paradigm that invokes the legislator’s values. As he argued, two types of functional interpretation: analogia legis or extensive interpretation have their effect anchored in the adopted values, thus preventing cases which happen to be strongly justified axiologically by such values from being excluded from regulation. Values also enable identification of the norms-conclusions derived through analogia juris and argumenta a fortiori. By providing grounds for the postulation of the rule of law, values ultimately safeguard the legal system from abuse.

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EFFECTS, RESOLUTION AND PROCEDURAL MEASURES REGARDING THE OPENING OF THE BANKRUPTCY PROCEEDINGS OF CREDIT INSTITUTIONS

Author(s): Al-Ibrahim Avin (Vîrlan-Al Ibrahim) / Language(s): Romanian Issue: 30/2022

Insolvency proceedings are judicial proceedings by which justice is done. The general condition for triggering bankruptcy is the insolvency of the debtor. The effects of opening the bankruptcy procedure refer to the rights as well as the obligations of the debtor. The insolvency procedure produces legal effects from the moment the procedure is opened.

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STEPS IN THE EVOLUTION OF ROMANIAN LAW

Author(s): Elena Tereza Danciu / Language(s): Romanian Issue: 31/2022

By accepting the form of expression of law as a criterion for delimiting the stages of its evolution, we distinguish two great periods: the period of customary law, or unwritten law, and the period of written law. In our country, the first period is comprised between the emergence and development of the Geto-Dacians’ customs, certainly long before the establishment of the Geto-Dacian stat, up to the 15th century, and the second period begins with the first codifications and continues up to the present. On the other hand, we cannot help but notice that there are moments in history that are likely to cause great transformations in the structure of a society, changing, practically, the direction towards which it can evolve. Thus, we distinguish between Geto-Dacian customary law, the application of Roman law in Dacia, the formation and evolution of Romanian customary law, the appearance of written law and its evolution during the reigns of the land, law during the Turkish- Phanariot regime, law during the struggle for the unification of the nation, law during the communist regime and law in the post-December period.

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De ce bunurile nu pot fi decât drepturile subiective și de ce toate drepturile subiective pot fi bunuri. Interpretarea eronată a moștenirii romane

Author(s): Cristian Duţescu / Language(s): Romanian Issue: 2/2023

The legal concept of good appears to be inextricably linked to that of value. Given that the traditional Romano-German civil law inspired by the vision of the glossators and the materialism of the Napoleonic Civil Code considered that socio-economic inter-human relations are grafted on the triad of things-goods-rights, a closer look at the created relationships cannot help us leads to another conclusion than that the notion of good is confused with that of right. This latter concept, eminently intellectual, is the only one that can be attributed the quality of a patrimonial asset. The Roman notion of "res" carries a complexity that extracts it from the simple sphere of the notion of "good" as classical law tried to position it, it rather signifies a thing in a legal sense, a thing over which it bears a patrimonial right. It is incorrect from a legal point of view and outside of Roman legal thinking the thesis according to which the right of ownership is incorporated in the thing on which it bears. Despite an extremely well-argued theory that denies the existence of subjective law in the Roman legal culture, it is implicitly found in the structure of Roman law, at least thanks to the exorbitant powers granted to the owner. The conclusion that subjective real rights have, beyond any terminology, the legal nature of goods, is accepted by the most important legal systems of human civilization, whether we are talking about common law, the Muslim culture, or the Jewish one. The good cannot be an thing which is ” appropriate”, the good it is found inside the patrimony of a subject of law, it has an exclusively ideational existence, and is equivalent to the right that carries over some corporeal or incorporeal things. The conclusion is that no other goods can be conceived outside of rights, intellectual creations of legal thought. Even in the hypothesis in which we accept the "appropriation" of material or immaterial things and not the rights over them, although they have an undeniable legal significance, they cannot acquire the quality of patrimonial components, but only as objects of rights.

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Chislain BENHESSA, Le totem de l’État de droit. Concept flou, conséquences claires Editura L’artilleur, Paris, 2021

Author(s): Radu Stancu / Language(s): Romanian Issue: 2/2023

Review of: Chislain BENHESSA, Le totem de l’État de droit. Concept flou, conséquences claires, Editura L’artilleur, Paris, 2021

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GENERAL CONSIDERATIONS REGARDING THE RIGHTS OF SUCCESSION’S OPTION UNDER THE ROMANIAN CIVIL LAW

Author(s): Patrick Rareş Lazăr / Language(s): Romanian Issue: 33/2023

The right of succession or inheritance’s option is the subjective right of the successors called to inheritance at the time of the death, to choose between accepting or giving up the inheritance, between consolidating the title of heir by accepting the inheritance and abolishing this title by renouncing inheritance, becoming a foreigner to the inheritance.

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On Law, Ideology, and Violence: A Reply to Maciej Pichlak

Author(s): Rafał Mańko / Language(s): English Issue: 1/2023

The present paper is a reaction to Maciej Pichlak’s article Law in the Snares of the Political: Addressing Rafał Mańko’s Critical Philosophy of Adjudication which was published in this journal (“The Critique of Law” 2020, 12(3), pp. 109–125). The present response addresses selected issues raised in Pichlak’s critique, focusing on three aspects: law and the political, the importance of justice in the critical project, and finally the question of adjudication and ideology. On a more general note, the polemic reveals the importance of philosophical, political and ideological commitments and presuppositions of legal theorists and poses the question of the limits of the autonomy of jurisprudential debates vis-à-vis such commitments.

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Ontyczna struktura normy w ujęciu tomistycznym

Author(s): Natalia Herold / Language(s): Polish Issue: 11/2022

This paper is an attempt to show the Thomistic approach of the ontic structure of norm for conduct of created rational beings. The basis for the statements is Treatise on Law of St. Thomas Aquinas (Summa Theologiae I-II, q. 90-97). There has been two external causes described, that is a formal cause, which shows the pattern of acceptance for a particular norm, and a material one, which is decisive with regard to its content. Additionally, the formal cause decides on the method of promulgation (announcement of co-ming into force) of the norm and on the method of its enforcement (coercive force, sanction). The content of norm (material cause) who is the object of the above protection cannot be any content, but a derivative of permissions subjected in nature (ius civile, ius gentium) and read out adequately by the intellect in the most possible way. Hence, natural law is the resultant of that what is subjected in the nature and the intellectual activity of man who attempts to cognize and articulate the nature. Such understood natural law is, according to Thomas Aquinas, a common fundament for various normative systems (ethics, morality, statute law and common law). The external causes of norm are hence the final cause which answer to the question on the purpose of norm (why do we establish a norm?) and the efficient cause which shapes the matter (content) of norm, and establishes its validity (form). The feature of the efficient cause is its competence for establishing norms present in its ability to secure the norms with a sanction. According to Aquinas, we find a fundament for any norm in the nature of reality whose reading from the normative perspective establishes a natural law. Any other normative systems are binding only when they participate, as specification for example, in natural law.

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Comments on Giacomo Borbone’s Book The Relevance of Models. Idealization and Concretization in Leszek Nowak

Author(s): Igor Hanzel / Language(s): English Issue: 2/2023

Chapter II of Borbone’s book addresses Nowak’s innovative views and reconstruction of the methods used in Marx’s economic works, namely, Marx’s delineation of the law of value, as well as Marx’s explanation based on this law as performed by the method of gradual concretization. In Chapter III, Borbone provides a comparison of Nowak’s approach to scientific laws and scientific explanation with that of Hempel. From that comparison Nowak’s approach comes out as superior to that of Hempel due to the former’s ability to re-construct laws containing equations, the possibility to address the issue of the explanation of a scientific law from other scientific laws, as well as a more fine-grained view on the very nature scientific explanation.

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Justice as Relations in Social Life

Author(s): Wojciech Dziedziak / Language(s): English Issue: 2/2023

The study is of a mostly conceptual and scientific-and-research nature, and the analyses contained herein are of a universal character. The article discusses the issue of relations of justice in social life. These relations have been based on the example of the right to life from the moment of conception, as it is the first, basic, and superior right. It began with considerations regarding the notion of justice. As a starting point, the classic definition in the formula “to render to everyone his or her own” (suum cuique tribuere) was adopted. It was emphasized that justice is for every human being. It was stated that justice as a universal value and a principle-norm, from which obligations originate, “builds” relations between entities. The article mostly analyses the relation between entities A and B, where entity A is every human being (the scientific data justifying when a human being originates are also pointed out), and entity B is a holder of legislative authority, always defined as an individual body just because of the considerations of justice, and as such participating in the relationship of justice.

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Soviet Religious Law in 1917–1922: Ideological and Legal Foundations

Author(s): Waldemar Bednaruk,Andrzej Gil / Language(s): English Issue: 3/2023

The article presents the ideological and legal foundations of the Soviet religious policy in 1917–1922, when the theoretical assumptions that formed the basis of the new government’s attitude to religion as such were transformed into its practical approach to religious associations present in the space of the functioning of the Bolshevik state. Attention was drawn to two basic issues: (1) the attitude towards religion in the theoretical considerations of Russian Marxists both before and after the Bolsheviks took power in Russia, and (2) the legal acts issued by the new power regarding the place of religion in the slowly emerging reality in the first five years of its existence. Both the ideology and the law itself were to serve the realization of one idea – the creation of a communist society, fully atheistic and recognizing only dialectical materialism. As it turned out from the perspective of later events, the years 1917–1922 were crucial for this intention. The legislation adopted at that time became the juridical basis of the Soviet religious law, implemented until the end of the existence of the USSR. The reference basis for the article is the relevant legislation and literature on the subject.

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Sytuacjonistyczna i normatywna koncepcja klauzul generalnych. Spory o trafność dwóch ujęć klauzul generalnych w świetle poglądów Józefa Nowackiego

Author(s): Sławomir Tkacz / Language(s): Polish Issue: 3/2023

The aim of the study is to analyse Józef Nowacki’s views on the characteristicsof general clauses. The author focuses on the most important issues that are the subject ofdisputes in legal scholarship. In particular, the subject of considerations is the situationist and normative concepts of general clauses as these concepts are understood by Józef Nowacki. In the first part of considerations, the author addresses the issue of vagueness (fuzziness) of general clauses. The main part of the considerations relates to the understanding of generalclauses as references in the light of their situationist and normative understanding. In the lastpart of the considerations, the author analyses the problem of the objects to which generalclauses refer. In the light of the presented considerations, the general conclusion is that eachgeneral clause may be applied in a situationist or normative manner. In the latter case, we canspeak of a reference to a certain set of norms. It is also appropriate to speak about non-textual references. The proposed terminology is the result of the convention adopted by each individual author.

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