Law Analogy Research Articles

A Big Root Approximation of Site‐Scale Vegetation Water Uptake

AbstractLand surface model (LSM) predictions of soil moisture and transpiration under water‐limited conditions suffer from biases due to a lack of mechanistic process description of vegetation water uptake. Here, I derive a “big root” approach from the porous pipe equation for root water uptake and compare its predictions of soil moistures during the 2010 summer drought at the Wind River Crane site to two previously used Ohm's law analog plant hydraulic models. Due to a fuller representation of pressure gradients and flows within a complex root system architecture, the new formulation achieves somewhat improved fit and significantly lower bias compared to the Ohm's law analog models. A key advantage of the improved physical representation is the increased robustness of fits and predictions, making it less liable to overfitting. This new mechanistic model advances our understanding of vegetation water limitation at site scale with potential to improve LSM predictions of soil moisture, temperature and surface heat, water, and carbon fluxes.

Political Independence, Territorial Integrity and Private Law Analogies

AbstractKant deploys analogies from private law in describing relations between states. I explore the relation between these analogies and the broader Kantian idea of the distinctively public nature of a rightful condition, in order to explain why states, understood as public things, stand in horizontal, private legal relations without themselves being private. I use this analysis to explore the international law analogues of the three titles of private right, explaining how territory differs from property, treaty from contract and the specific form of status relations between nations. I conclude with a brief discussion of the ongoing relevance of these horizontal relations.

Variational Entropic Regularization of the Discontinuous Galerkin Method for Gasdynamic Equations

A constructive version of the discontinuous Galerkin method (DGM) of arbitrary orders of accuracy to solve gasdynamic (GD) equations is proposed. This DGM is based on the new variational principle of entropic regularization ensuring the implementation of discrete analogs of the conservation laws of mass, momentum, total energy, and entropic inequality.

Qualified Legislator’s Silence: Problem of Recognition

The problem of developing the ways of recognition of the qualified silence of the legislator has been studied. It has been stated that the “qualified silence of the legislator” is underdeveloped category of law, especially regarding the ways of recognizing such specific legislative silence within the norms of law. This problem has become more urgent due to the revival of case law in Ukraine on the application of the analogy of law and the analogy of legislation. While applying these techniques, overcoming the gaps of civil law, the courts often identify the relevant gaps of the legislation with the qualified silence of the legislator, which is a major shortcoming. Solution of this problem will allow the courts to better identify the qualified silence of the legislator in the law norms.
 One of the methodological approaches in solving the problem of recognition of the legislator’s qualified silence and the gaps of the legislation is the extension of the relevant research tools. In contrast to the legal position existing in the legal doctrine, the author of the article has critically assessed the ability of systematic interpretation of the law norms to be a self-sufficient method of revealing the legislator’s qualified silence. In order to recognize the true qualified silence of the legislator, the author has offered to concentrate on explaining the legal policy that may be manifested in one or other cases of the legislator’s silent expression of will. At the same time, systematic, historical or doctrinal interpretation of legislation is of relative importance to the need for clarifying legal policy.
 From the point of view of determining the degree of scientific novelty, the suggested approach has the nature of further development of doctrinal provisions. The author has noted on the necessity of further elaboration of the studied problems, in particular, in determining the location of each of the ways of recognizing the qualified silence of the legislator within the system of methods of interpretation of legal norms.

Role of Legal Principles in Eliminating and Minimizing the Risks of Genomic Technologies

The use of modern genomic technologies, along with the benefits to the man and society, can lead to negative consequences. Such risks exist both in the process and after the production, isolation, modification, storage of DNA. Prior to detailed legislative regulation of relations regarding the use of genomic technologies for medicinal purposes and not for medical reasons, legal principles become vital.The paper formulates the following basic legal principles of genomic technologies application: the principle of preventive actions of the state to protect citizens from the risks of using genomic technologies; the principle of preserving the human genome as a special species; the principle of guaranteeing the inviolability of the individual of every citizen when using genomic technologies; the principle of priority of life and health of citizens over the interests of science and society; the principle of equality of citizens regardless of genetic characteristics; the principle of protection of genetic information of every citizen as part of personal data; the principle of guaranteeing access to the citizen’s own genetic information. Legal principles can be used to resolve a dispute by analogy of law.

Legal status of legal expert on law issues in civil procedure of Ukraine

The research paper is devoted to s the problems of determining the legal status of the expert on law in civil procedure in Ukraine. The peculiarities of his involvement in the judicial process are analyzed and ways to improve his legal status are proposed. Today, lawyers are discussing the advisability of involving a legal expert in litigation. Thus, according to some lawyers, judges in Ukraine act on the principle of "jus novit curia" ( « a judge knows the law » ), and according to others, the consolidation of the rights and obligations of an expert in law at the legislative level is consistent with the course of development of legal policy in the field of democracy and the rule of law proclaimed by Ukraine. In the legal literature, as a rule, the problems of participation of a legal expert in court proceedings are revealed through the prism of scientific and practical analysis of Article 8 of the Law of Ukraine "On International Private Law", according to which the court may apply to the expert to establish the content of foreign law. At the same time, legal science requires complex scientific research on the legal personality of the expert on legal issues as a participant of legal relations arising in the implementation of civil proceedings. The author emphasizes that the main purpose of a legal expert is to assist in matters that require specialized knowledge. At the same time, the norms of the Civil Procedural Code require further elaboration in terms of a comprehensive solution of the issue of participation of the legal expert in civil proceedings. It should be noted that the conclusions of the legal expert may concern only the issues of analogy of law or law or application of foreign law, they cannot solve the issues of gaps or conflicts, as this task is solely the responsibility of the court when making decisions, and no one has the right to indicate the courts, the decision to make or how to solve the dispute correctly. Recent results of law enforcement activities have shown that neither the court nor the participants in the process are yet ready to involve a legal expert and their findings in the process. Thus, in practice, in most cases it is limited to providing legal positions to the advantageous party under the guise of the opinion of an expert in law or application of conclusions on issues that are not provided for by law. In addition, problems arise in the ratio of a legal expert with other participants of the process, the proportionality of the costs of their services and issues of their compensation, the impossibility of bringing them to responsibility for the refusal or provision of an unreliable conclusion, etc.

The Analogy of Natural Law: Aquinas on First Precepts

The Analogy of Natural Law: Aquinas on First Precepts

The Principles of Justice in International Law

Background/Objectives. The article is devoted to the principles of law governing the organization of judicial proceedings in international law. There are a number of principles of justice, such as the rule of law, the independence of judges, the reasonable period of proceedings, counterclaim, publicity, and others. This article covers not all, but some of them, which, in the authors' opinion, are the most publicly significant in the administration of justice. The most widely considered is the well-known principle of legality, which includes several aspects, including the prohibition of retroactive application of the law and the prohibition of the analogy of law. This article also emphasizes the importance of making a list of principles of justice.
 Methods. The main method of research is comparative analysis. Other scientific methods were also used in the study, such as: interdisciplinary synthesis, logical method, analogy method, specification, classification, and systematization.
 Conclusions. Among the general principles of law, there are some special provisions relating to justice. Such principles are applied in judicial proceedings at both the national and international levels of justice. A complete list of such principles has not yet been made. This study emphasizes the need to define and classify the principles of justice. In the context of the general nature of this study, it is understood that some of the issues raised in the article may be the subject of further research. In the absence of legal norms, the results of the study of the principles of justice applicable in international law could be very useful, especially for judges.

Futbol i filozofia prawa: gra albo kaprys sędziego

The aim of this paper is to illustrate the analogy of law and game on the example of selected problems of contemporary theory and philosophy of law. The frames of this text are determined by the metaphor of the game, and in particular by the reference to football, because football has the feature of universality in the modern world. In the context of the relationship between the law and the game, the basic assumptions of the concept of H. L. A. Hart, R. Dworkin, A. Marmor, A. Hutchinson, J. Searle are introduced. Above all, however, the use of the metaphor of the game by H. L. A. Hart in „Concept of Law” is being described. Particular emphasis is placed on discussing the distinction he made between the game according to the rules and the game of „scorer’s discretion”. Considerations regarding this problem are supplemented with examples from the world of football.

A MULTI-LINEAR FRACTAL MODEL FOR PRESSURE TRANSIENT ANALYSIS OF MULTIPLE FRACTURED HORIZONTAL WELLS IN TIGHT OIL RESERVOIRS INCLUDING IMBIBITION

Most models for multiple fractured horizontal wells (MFHWs) in tight oil reservoirs (TORs) are based on classical simplified dual-porosity model that ignores the influence of imbibition, while the distribution of fracture system is heterogeneous, multi-scale and self-similar, which can be described by fractal dual-porosity model on fractal theory, and imbibition production is the important part of fracture system production. In this paper, a multi-linear fractal model (MFM) considering imbibition for MFHWs in TORs was established based on fractal theory and semi-analytical method. In this model, fractal theory was used to describe the heterogeneous, complex fracture network, and imbibition was considered by analogy of fluid crossflow law in fractured-porous dual media. And the approximate analytic solution was given by using the Laplace transformation and iteration method. The pressure responses in the domain of real time were obtained with Stehfest numerical inversion algorithms. The pressure transient and production rate were used to analyze, and sensitivity analysis of some related parameters were discussed. The results show that the fluid flow in MFHWs can be divided into nine main flow periods by analysis of type curves, and the fractal parameters of fracture system have great effect on the middle and later periods and imbibition influences the period of crossflow.

The Persuasiveness of Domestic Law Analogies in International Law

The Persuasiveness of Domestic Law Analogies in International Law

ANALOGIJA U PRAVU: ZNAČENJE I UPOTREBA

Conclusions by analogy are common in all areas of human activities, including law. Conclusion by analogy in law can be reduced prima facie to the same form as the conclusion by analogy in general i.e. two premises and a conclusion. However, it differs from analogical conclusion in general, because one premise in law conclusion must be normative (not only factual). Researches into analogical conclusions (in general and in law) have been done from many aspects and by a number of authors. There is a consensus only on an elementary form, and it is founded on the similarity of two objects (two features) in some characteristics, which draws a conclusion that these objects (features) are similar in some of their features. When it comes to analogy in law, there are four types of analogies: A statutory analogy (analogia legis), law analogy (analogia iuris), the inter legem analogy, and an analogy we use in law of precedents. These analogies are utilized to interpret legal norms and the loopholes in the law are closed (with exception of criminal law where there are no loopholes). This becomes both particularly interesting and disputable when it comes to legal principles.

A Medium Model Leading to Analogy of Major Physics Laws

The attempt of this paper is to suggest a new theoretical medium to support the efforts of building particle models as mechanical field structures. The medium model is based on two simple fundamental assumptions. All the properties of the medium, as counterparts in this medium of the well-known physics laws, including energy and momentum conservations, Lorentz transformation and special relativity, electromagnetic interaction, etc., are derived from these two assumptions. The governing equations are established based on the derived properties. Some steady solutions as well as the feasibility of interpreting these solutions as particles are also briefly discussed.

Justice as a security function of the human rights nature of judicial authority

Introduction.In the article the author’s view of justice as one of the most important security func­tions of the human rights nature of judicial author­ity is set out. The author defines the factors which determine the level of credibility and the nature of as­sessment by society of judicial authorities’ work (as a result – all judicial system of Russia). The nature of judicial authority, its structure and system in many respects are based on the function of justice (imple­mentation of judicial authority in the system of divi­sion of the authorities) as most important type of law enforcement and also on the nature and functions of legislature adopting laws which are then construed by court. Only the court, based on construction and analysis of standards of legislation (analogy of leg­islation) and law (analogy of law), within the “cor­ridor” of the current legislation, can draw the final conclusion which can be equated to the law based on its validity and need for its execution by obligatory use of coercion. Materials and methods.The methodological basis of the research includes the following general scientific and special methods of researching legal phenomena and processes in the sphere of the judicial law and justice: method of the system and structural analysis; synthesis method; analysis method; com­parative method; formal method; statistical method. Results of a research.As a result of the analysis it is revealed that law enforcement is possible only on the basis of interpretation or specification of law by a judge in each individual case. Law enforcement is law in operation, and justice (under the judicial acts which have come into force) a final way of ensur­ing universality and uniformity of rules of law. Law enforcement is impossible without the current legis­lation which is exposed to continuous changes and additions; which change law enforcement itself. Discussion and conclusions.It is proved that the structure of judicial system is defined by the hu­man rights nature of judicial authority and by the character of the substantive law applied in each type of legal proceedings. The author of the dissertation suggests proceeding from a new – the author’s – understanding that judicial authority by means of a security function of justice is a source of creation of the standards of behavior (forbidding, obliging) for certain citizens and/or their groups. It is proved that the understanding of justice only as the type of human rights activity is narrow and doesn’t meet the purposes of improvement of the judicial system of Russia.

International Investment Law and the Public Law Analogy: The Fallacies of the General Principles Method

Over the past ten years, commentators have drawn an analogy between the international investment regime and domestic public law in order to fill gaps, resolve ambiguities, and understand the nature of the investment regime. One way in which domestic public law may be relevant is if it reflects a general principle of law that is applicable by virtue of Article 31(3)(c) of the Vienna Convention on the Law of Treaties. The practice of international investment tribunals demonstrates, however, that tribunals do not use domestic law according to the ‘general principles method’. Instead, investment tribunals’ use of comparative law raises various normative and methodological issues that have not yet been thoroughly addressed in the literature. The article identifies and addresses some of those issues.

Modeling of Moisture Transport Into an Electronic Enclosure Using the Resistor-Capacitor Approach

Abstract The aim of this paper is to model moisture ingress into a closed electronic enclosure under isothermal and non-isothermal conditions. As a consequence, an in-house code for moisture transport is developed using the Resistor-Capacitor (RC) method, which is efficient as regards computation time and resources. First, an in-house code is developed to model moisture transport through the enclosure walls driven by diffusion, which is based on the Fick's first and second law. Thus, the model couples a lumped analysis of moisture transport into the box interior with a modified one-dimensional (1D) analogy of Fick's second law for diffusion in the walls. Thereafter, under non-isothermal conditions, the moisture RC circuit is coupled with the same configuration of thermal RC circuit. The paper concerns the study of the impact of imperfections in the enclosure for the whole diffusion process. Moreover, a study of the impact of wall thickness, different diffusion coefficient, and initial conditions in the wall for the moisture transport is accomplished. Comparison of modeling and experimental results showed that the RC model is very applicable for simple and rough enclosure design. Furthermore, the experimental and modeling results indicate that the imperfections, with certain limits, do not have a significant effect on the moisture transport. The modeling of moisture transport under non-isothermal conditions shows that the internal moisture oscillations follow ambient temperature changes albeit with a delay. Although, moisture ingress is slightly dependent on ambient moisture oscillations; however, it is not so dominant until equilibrium is reached.

ANALISIS HUKUM SECARA ANALOGI PENERAPAN ASAS PEMISAHAN HORIZONTAL PADA PRAKTEK JUAL BELI TANAH TIDAK BESERTA DENGAN POHON KELAPA DI ATASNYA DI KEC. PATILANGGIO KAB. POHUWATO

The principle of horizontal separation in the LoA is a principle that separates the ownership of the land by the right to the property on the ground or attached to the land, where the existence of the object attached to the land there is a time limit provision either by agreement or on the basis of the provisions of the legislation.Based on the analogy of law in the above analogy, it can be concluded that the practice of buying and selling land is not accompanied by coconut trees on it also apply the principle of horizontal separation due to the separation or difference of legal subject holder of property rights to the land with legal subject holder of property rights on coconut trees . But if you look at the various legal bases in the BAL which regulate the principles of horizontal separation such as Right of Use, Right of Use, Right to Use, Lease of Land for Building Establishment, Right of Ride, and Lease of Land for Agriculture all have clear clear time limits on the basis of agreement and also on the basis of the provisions of legislation. And for the duration of the term is not over so long also the holder of property rights on the land should not use his right either to build the building, manage or make it as collateral (collateral) debts and so on. While in the sale and purchase of separate land with coconut trees on it is not so, because there is no provision of clear time limit of the existence of coconut trees on the land rights of others and holders of land rights are still entitled to grow crops on their property rights. So the basic difference is what distinguishes the application of the principle of horizontal separation in BAL with the principle of separation of horisoltan on the practice of buying and selling land is not accompanied by coconut trees on it.

The Rise and Fall of Ziggy Stardust and Natural Law

In Natural Law and Natural Rights, John Finnis delves into the past, attempting to revitalise the Thomist natural law tradition cut short by opposing philosophers such as David Hume. In this article, Finnis’s efforts at revival are assessed by way of comparison with—and, indeed, contrast to—the life and art of musician David Bowie. In spite of their extravagant differences, there exist significant points of connection that allow Bowie to be used in interpreting Finnis’s natural law. Bowie’s work—for all its appeals to a Nietzschean ground zero for normative values—shares Finnis’s concern with ordering affairs in a way that will realise humanity’s great potential. In presenting enchanted worlds and evolved characters as an antidote to all that is drab and pointless, Bowie has something to tell his audience about how human beings can thrive. Likewise, natural law holds that a legal system should include certain content that guides people towards a life of “flourishing”. Bowie and Finnis look to the past, plundering it for inspiration and using it as fuel to boost humankind forward. The analogy of Natural Law and Natural Rights and Bowie’s magpie-like relationship to various popular music traditions ultimately reveals that natural law theory is not merely an objective and unchanging edict to be followed without question, but a legacy that is to be recreated by those who carry it into the future. Law’s instruments of critique must not forget these transformative qualities.

The State of Scientific Research of the Problems of the Institution of Analogy in Civil Law

The article reveals the real reasons of low demand for the institute of analogy in the law enforcement activity and limited coverage of instances of application of analogy of the law and analogy of law in judicial acts. The paper highlights the lack of due attention to the institute of analogy in modern study materials on civil law. Also, it draws attention to the insufficiency of scientific research of the phenomenon of analogy in Civil Law. In few dissertations (theses) devoted to civil law issues the author highlights the use of a narrow, predominantly theoretical, approach to analogy as one of specific instances in the system of ways applied to overcome gaps in Civil Law. In view of a noticeable change in the attitude of the law-maker with regard to the analogy and the emergence of the latest law enforcement approaches to the implementation of the analogy of the law and the analogy of law, including the level of the higher courts, the author substantiates the necessity of facilitating the complex study of analogy not as an abstract legal structure, but as an element of modern legal technique, as a means of implementation and protection of civil rights, as a stage of application of law and a factor encouraging the civil law development.

Labour law for TOS and HITs? reflections on the potential for applying ‘labour law analogies’ to crowdworkers, focusing on employee representation

A growing number of people are performing work tasks via online platforms, referred to under various designations such as ‘Human Intelligence Tasks’ (HITs), under conditions set out not in an employment contract but through the standardised Terms of Service (TOS) of their contract partner. This article argues that, in spite of increasing evidence of precarious working conditions and circumvention of labour law and social protection standards in ‘turking’-style work environments, attempts to classify these forms of crowdwork as employment relationships are of limited practical use and benefit for those working in the industry. Instead, departing from much-debated concepts of a ‘purposive’ approach to labour law, it makes the case for a differential analysis of the aims of diverse elements of labour law and a consideration of whether, and to what degree, these can be instrumentalised for dealing with a contractual relationship that, notwithstanding socio-economic similarities, is fundamentally different from the employment relationship for which that law was developed, in several respects. It discusses the merits of rules on workplace employee representation and explores options for operationalising these for crowdworkers. For this purpose, it considers forms of collective organisation of crowdworkers via various networks as they already exist and are emerging in practice to question whether it is or should be reasonable for crowdworkers to be legally entitled to rights analogous to the workplace representation bodies such as works councils, which would entitle them to rights ranging from information and consultation to co-determination as well as veto rights on specific issues.