Anglo-American Legal System Research Articles

Theoretical And Legal Approaches To The Concept Of «Corporation» In Legal Families

The article analyzes the scientific views on the concepts of «legal entity» and «corporation» formed in different legal systems, indicating either the identity of these concepts, or their heterogeneity by deducing a number of common and distinct features. Determined that in the Anglo-American legal system, the corporation is seen as a collective term, which should be understood by business associations and nonbusiness capital entities created to meet social objectives. It is proved that in EU law the concept of «corporation» is not identical with that of a legal entity, although a considerable number of types of legal entities are proposed to be included in the list of legal entities.
 In the countries of the continental legal system (France, Germany, Switzerland, Russia, Ukraine, etc.) the term «corporation» is rarely used in the law. This concept is used mainly in literary sources. Corporations include: various types of companies (full and limited partnerships, joint stock companies and other companies, members of which are limited liability for the obligations of the company), business associations (groups, trade unions, holdings, etc.), cooperatives, leases and state-owned enterprises, as well as various non-economic unions and associations.
 The main difference between the range of legal entities in the Anglo-American and Continental legal families is that in the first case, the terms «legal entity» and «corporation» are correlated as interchangeable concepts, and in the other case, the possibility of correlation between the concepts of «legal entity» and «corporation» depends on the approach of the legislation of the country to the definition of their organizational and legal forms and the formation in the scientific circles of the criteria for their separation or integration into one or another concept, or the introduction of this concept into the existing legislation of the EU country with a clear list of organizational and legal forms. Therefore, every legal family has their own approaches to the concept of «corporation».

Metaphorical Terms as Part of English Legal Terminology

The present research features the role of metaphorical term formation in the Anglo-American legal term system on the basis of a multi-aspect analysis of a lexicographic source. A thorough examination showed that metaphorization is a full-featured but not productive mechanism of terminology production in the sphere of jurisprudence. Metaphorical terms that function in major, specialized, and complex branches of law represent less than 1% of all terminological units recorded in the ABBYY Press legal dictionary. The paper focuses on mono-lexemic and poly-lexemic legal terms formed by metaphorization. Two- and three-component metaphorical terms were found most frequent. This fact can be explained both by the binary essence of the metaphorical process itself and by a high degree of specification of the legal concept. The position of the metaphorical component was taken into account when the terminological combinations were systematized. The paper contains some examples of various types of metaphoric shift in term formation: reframing according to (1) functional analogy, (2) identity of the produced impression, (3) size correspondence, (4) similarity of origin, (5) the presence of related properties, and (6) the same extension in space. The author singled out anthropomorphic, socio-morphic, artifactual, and nature-morphic metaphorical models of legal term formation. The predominant distribution of anthropomorphic legal metaphors reached almost 50% of the whole selection of examples. The paper describes and illustrates conceptual source spheres of all four categories of terminological metaphors in the legal field. As for some vague cases, the author specified the significative zone of the metaphor according to its figurative-semantic focus. In addition, the study differentiated universal and nationally-marked legal metaphorical terms. Particular attention in this classification was given to metaphorical terms that bear precedent phenomena which are part of the cognitive base of the English-speaking socio-cultural community and serve as a key to understanding its legal norms.

Pravci razvoja prava životne sredine

A relationship of a human being towards nature and its surroundings created by human labour has become a subject of separate legal regulation and separate legal studies only in the past few decades. Previously, this topic was investigated only sporadically and fragmentarily, within the traditional branches of law. The concept of integral legal protection started being conceived in the 1970s. It opened up a way towards a new, integrative and synthetic branch of law, which has changed its name and content over past few decades. In recent times, this new branch has been most commonly called Environmental law. It, basically, encompasses two groups of questions: those pertaining to the rights and duties which a human being may have in relation to the protected goods in his environment, and those pertaining to the legal protection of these assets. This article briefly discusses the prehistory of Environmental law, directions of its development over the past half a century, its features at the current level of development, as well as the projections of its future development in the near and a more distant future. Comparative studies reveal that court practice has had a key role in the emergence of this new branch of law, not only those in the Anglo-American legal system but also those in the European-continental law. Through their practice, the courts have modified some existing legal institutes and concurrently created some new institutes, aimed at the protection of human environment. Legislative authorities have been less inventive and insufficiently efficient in that respect. Statutory regulation is underdeveloped, frequently lagging behind social changes. The contemporary legal science encounters similar problems, particularly in terms of numerous terminological, conceptional and substantive contraditions and inconsistencies on the legal nature and functions of environmental law. Obviously, there is a stressed need for harmonizing legal terminology, both at the national and the international level. Moreover, the terminology used by legal professionals has to be attuned with the terminology used by other professions. This is especially important given the fact that the future will be marked by the development of the so-called advanced (interdisciplinary and multidisciplinary) studies which should enable bringing together of knowledge of different scientific fields and more efficient reaction in the field of environmental protection and sustainable development. Legal doctrine and legal practice cannot be developed in isolation, independently from other branches of science. It is essential to determine their positions within wider contexts established for the purpose of (re)integrating the existing fragmented sciences and enabling joint action in this field. Law should contribute to instituting changes in the societal flows which jeopardize protected goods in the human environment, whereas it concurrently has to undergo a vigorous transformation itself. The article provides an overview of directions in which these changes ensue.

Корпоративні договори в національному праві та праві краї англо-американської правової системи

Корпоративні договори в національному праві та праві краї англо-американської правової системи

The Real Standard Picture, and How Facts Make It Law: A Response to Mark Greenberg

Mark Greenberg has attempted to refute what he regards as a popular metaphysical thesis about how law is constituted. He calls it the “Standard Picture”, and it includes a “Communication Theory”. His own “Moral Impact Theory” of law is built partly on that attempted refutation. I defend positions that are very close to the Standard Picture and Communication Theory, albeit different in important respects. In particular, they are not primarily metaphysical theses, although they have metaphysical implications. They are actual fundamental doctrines of constitutional law in Anglo-American legal systems, which I call Legislative Supremacy and Legislative Intention. I argue that: (a) these doctrines, and their metaphysical implications, vindicate much of the Standard Picture, and explain why so many theorists have been attracted to it; (b) the doctrines are inconsistent with Greenberg’s Moral Impact Theory; and (c) the best theory of what makes them part of the law is legal positivism: in other words, facts about legal practices make them law. In arguing for (a) and (b), I examine in detail and respond to Greenberg’s account of the legal principles and practice of statutory interpretation. I distinguish between three kinds of interpretation: clarifying, supplementing and rectifying. In arguing for (c), I contend that legal positivism satisfies Greenberg’s (questionable) insistence that any metaphysical account of what constitutes law must satisfy a “rationality requirement”.

Rethinking Non-Pecuniary Remedies for Defamation: The Case for Court-Ordered Apologies

Legal scholars have been encouraged to examine alternative remedies for defamation in response to an increasing criticism of monetary damages. Various types of non-pecuniary relief (such as retraction, right of reply, publication of court decisions or declaratory judgement) have been made the subject of elaborate studies. The role of court-ordered apologies as a non-pecuniary defamation remedy has been scarcely discussed in academic literature. The work that has been done focuses either on the remedial role of apologies in East Asian jurisdictions or on apologies as a civil legal remedy aimed at emotional recovery for specific kinds of harm (such as personal injury, invasions of privacy or violations of equal opportunity legislation). These studies, which mostly go beyond the scope of defamation law, pay very little attention to the Western legal tradition. The Anglo-American and continental-European legal culture are considered non-apologetic traditions, which are clearly unfamiliar with the remedy of imposing apologies. Contrary to the conventional wisdom, this article shows that court-ordered apologies are available as a defamation remedy in a non-negligible part of the Western legal tradition. This is demonstrated through a profound comparative legal analysis of continental legal systems (Western, Central as well as Eastern European jurisdictions), a mixed legal system (South-Africa) and common law systems. Simultaneously, this article allows us to gain a better understanding of why this remedy is still applied in some jurisdictions and why it has disappeared in others. The article proceeds on the premise that a case can be made for court-ordered apologies as a defamation remedy in the Western legal tradition, and accordingly, it is argued that they are worth considering in jurisdictions which do not make use (anymore) of this legal tool. First, in operating a symbolic reversal of the original defamatory assertion, court-ordered apologies are more likely to produce a shaming effect than other remedies. Second, it is possible to attribute an educative function to court-ordered apologies, allowing courts to educate members of the community about what constitutes unlawful and injurious statements. When examining the implementation of court-ordered apologies as defamation remedy, a civil-common law divide comes to the fore. Whereas apologies can be introduced in continental legal systems as a form of reparation, it is harder to import them into Anglo-American legal systems. The same goes for the reconciliation of this type of relief with freedom of expression, which is simpler to attain under the balancing test of the European Court of Human Right than in some common law systems.

Composition of the criminal courts

The composition of a criminal court stands as one of the most interesting issues in the comparative law. Different viewpoints when it comes to the need of including non-professional citizens in the contemporary criminal procedure have contributed to interesting approaches related to regulating this issue. First of all, there are original jury systems that are a feature related mainly to the Anglo-American legal systems, but whose ideas have found their place in the European legislature as well. Furthermore, there are countries where the trial body stands as a separate authority, which consists of professional judges and lay judges, whereas some of the countries have both professional judges and lay judges, the first being in charge of resolving legal issues, and the second ones being in charge of factual issues. There are many articles devoted to the jury systems in the world, but in a very small proportion of them we could find solutions from the mixed court of the Balkan countries. Mixed court is one of the features continental countries. The authors compare Balkan countries, where Slovenia and Croatia being the European Union Members, whereas the rest of them are in the process of accession. Thereby, some of the countries strive to get their courts become more professional by leaving out citizens non-professional from the composition of trial chamber, while some of them have kept them, whereby the scope of their jurisdiction varies from one country to another. Today, it is a great question whether a mixed court will survive legislative changes, due to the criticism of the jurists and non-jurists.

Organizer of Creation of a Complex Object of Intellectual Property Rights: Problems of Theory and Practice

In the Russian Federation, a person who organized the creation of a complex object is not the author of such an object. Traditionally, civil law distinguishes a triumvirate of authors of a complex object on the example of one of its type - an audiovisual work. A production director, scriptwriter and composer who created music specially for this work are recognized as authors. However, the foreign legislation of some states has a different approach to this issue. In the article, on the example of such a participant as a producer, the author considers the problem of determining his legal status, since in the countries of the Anglo-American legal system a producer is considered to be the author of the movie. The article highlights that the person responsible for the organization of the process of creating such an object, in particular, the person who took the initiative and responsibility for the creation of the relevant object (not only financial contribution but also creative one), may be considered to be the author provided he makes a creative contribution to the creation of a complex object.

The Problem with Precedent

We review Settled Versus Right: A Theory of Precedent by Randy J. Kozel. In summary, Kozel’s book is worth reading because our Anglo-American legal system is built on the foundation of the doctrine of stare and his book provides an in-depth yet readable exploration of how precedent is supposed to work. Specifically, Kozel explains why precedent is such a feeble constraint in constitutional cases, and he proposes a novel theory of stare decisis, given judicial disagreement over proper constitutional interpretation. We identify several problems with this second-best theory of precedent, and we also present an alternative theory of Bayesian stare decisis.

From Riggs v. Palmer to Shelley v. Kraemer: The Continuing Significance of the Law-Equity Distinction

This chapter begins with a sharp distinction between two kinds of judicial authority — the authority to apply law and to do equity. Plaintiffs who file suit on a claim of legal right assert an entitlement to recourse from the defendant, and to judicial assistance in obtaining it. By contrast, equitable claims request a court to exercise its discretion to block or modify the ordinary operation of the law, or to provide relief to which there is no legal entitlement. This distinction, we argue, sheds light on some of American law’s most famous and controversial decisions, including Riggs v. Palmer, Moore v. Regents, and Shelley v. Kraemer. Indeed, insofar as each reaches a defensible result, it is because it is an instance of a court doing equity rather than applying law. As our analysis of these and other decisions demonstrates, an appreciation of the law-equity distinction remains necessary for an adequate understanding of Anglo-American legal systems.

Защита авторских прав в условиях развития новых цифровых технологий

There is an assumption that as a type of intellectual property, copyright has become more vulnerable and at risk due to the new technologies and digital information. It can be argued that a digital world allows people to copy easier, cheaper and faster copyrighted materials, therefore increasing the threat of copyright infringement. For example any person is able to copy, reproduce or distribute to public a large number of copyright work such as music, photocopies or literary works through the internet. Recent technological advances, in particularly high-speed Internet connections have helped make the legal storage and dissemination of such works more efficient and marketable. By considering a current situation, the author raises a legal question whether a legal framework for the protection of the copyright is effective or not. To answer for the question, the author shows some problems which have been emerged around copyright such as file sharing, illicit copying and piracy and refers to a number of cases which based on Anglo-American legal system. By reviewing the legal framework against copyright infringement such as the Copyright, Designs and Patents Act 1988 (CDPA) and the Digital Millennium Copyright Act 1998(DMCA), the authors concludes that regardless of mass digitization, copyright is still considered to be an useful and appropriate protection for copyright owners. Key words: copyright infringement, digital technologies, peer-to-peer file sharing, copying, piracy.

Struktura sudskih veća u krivičnim sudovima

The composition of a criminal court stands as one of the most interesting issues in the comparative law. Different viewpoints when it comes to the need of including non-professional citizens in the contemporary criminal procedure have contributed to interesting approaches related to regulating this issue. First of all, there are original jury systems that are a feature related mainly to the Anglo-American legal systems, but whose ideas have found their place in the European legislature as well. Furthermore, there are countries where the trial body stands as a separate authority, which consists of professional judges and lay judges, whereas some of the countries have both professional judges and lay judges, the first being in charge of resolving legal issues, and the second ones being in charge of factual issues. There are many articles devoted to the jury systems in the world, but in a very small proportion of them we could find solutions from the mixed court of the Balkan countries. Mixed court is one of the features continental countries. The authors compare Balkan countries, where Slovenia and Croatia being the European Union Members, whereas the rest of them are in the process of accession. Thereby, some of the countries strive to get their courts become more professional by leaving out citizens non-professional from the composition of trial chamber, while some of them have kept them, whereby the scope of their jurisdiction varies from one country to another. Today, it is a great question whether a mixed court will survive legislative changes, due to the criticism of the jurists and non-jurists.

Справедливость и целесообразность в англо-американской и континентально-европейской правовых системах: постановка проблемы

Справедливость и целесообразность в англо-американской и континентально-европейской правовых системах: постановка проблемы

The Blind Justice Paradox: Judges with Visual Impairments and the Disability Metaphor

The metaphor connecting blindness and fair-impartial legal treatment has been embodied in the Western world for hundreds of years through the image of a blindfolded woman who represents justice. Nonetheless, not much has been written about the complexities and obstacles that stand in the way of placing actual blind judges on the bench. Nor has the ‘Icon of Justice’ been used to represent the social struggle for disability rights. This article is the first to turn a spotlight on the long history of blind people in England and the United States serving as members of the judiciary and to explore how this integration dovetails with the symbolic importance of blindness in the iconography of law. The article delves into the varied connotations of blindness throughout Western culture and legal history, specifically in its purported relationship to the objectivity of the judge. Finally, the article contrasts examples of the inclusion of blind people in Anglo-American legal systems with an Israeli case, revealing existing barriers that still prevent many blind people from entering the legal profession.

Trust or Legal Person: A Brief Review of the Organizational Features of Western Political Thoughts

Trust law as a unique legal regime in common law world has deeply influenced the legal and political practices in Anglo-American legal system. By contrast, the regime of legal person formed a series of distinctive legal theories and political practices in Continental jurisdictions. From the perspective of organizational law, this essay explores the different governance mechanisms of Anglo-American constitutionalism and Continental political traditions, and re-explains why historically the common law countries have advantages in democratic politics.

Legal control of expert witness bias

Impartiality of expert witnesses means that such experts operate within scientific principles and legal procedures. By doing so, they assist the trier of fact. There are two aspects to the requirements for the impartiality of expert witnesses: the individual perspective and the industry perspective. Each expert witness must follow individual standards, including avoiding irrelevant information affecting his or her opinions; applying reliable methods; employing reasonable analysis; and providing the findings in comprehensive reports (including a precise description of personal background and expert activity). They must also follow industry standards of forensic science regarding objective technical accessible demands, laboratory management and career management. Biased expert witnesses, however, will damage impartiality and impede the goal of assisting the trier of fact. Based on psychological theories such as dual process theory, authoritarian personality and intergroup threat, this paper classifies expert witness bias into four categories: (1) cognitive bias; (2) bias in the analytic process; (3) bias resulting from the position of the expert witness at trial; and (4) the social bias arising from social pressure or economic pressure. Because bias influences the relevance, credibility and impartiality of experts, steps should be taken to restrict certain categories of bias, which can be and must be controlled. Reflecting the differences between the Anglo-American legal system and the Chinese legal system, in China the bias of expert witnesses should be controlled in terms of actions, occupational management and independence of laboratories.

'Business Organization in the Long Run: Private Limited Companies Rule!'

A long tradition in the economics, corporate law, and corporate finance literatures presumes the general superiority of the corporation as a form of business organization. A more recent tradition claims that countries with Anglo-American legal systems afford investors greater protection than countries with civil-law systems. This article challenges both claims. We focus on the introduction of the private limited-liability company (the PLLC) in France, Germany, the United Kingdom, and the United States in the late nineteenth and twentieth centuries. The PLLC combined the advantages of legal personhood and joint stock with flexible internal governance rules. It allowed business people to avoid the threat of untimely dissolution inherent in partnerships without taking on the full danger of minority oppression that came with the corporation. The PLLC was successfully introduced first in Germany, a code country, and last in the US, a common-law country whose courts had effectively killed earlier attempts to enact the form. Using data on the number of firms organized under various enterprise forms, we show that the PLLC became the form of choice for small- and medium-size enterprises wherever it was introduced, even in countries where incorporation was cheap and easy and the regulatory burden on corporations was light.

The Constitution, the Courts and the Common Law

The Constitution, the Courts and the Common Law

The Mistaken Doctrine of Common Law: A Critique

Abstract The study deals with Huerta de Soto’s thesis about the “mistaken doctrine of common law”, which is based on the equalization of depositum irregulare and mutuum contracts. He concluded that equalization of these contracts resulted in the creation of business cycles. According to this study, Huerta de Soto made a mistake when considering contracts inspired by the continental law based on Roman law. The study shows that mutuum was even in Roman law an ancient contract that was not codified, and that Huerta de Soto’s interpretation of this contract in the Anglo-American legal system is based more on civil law, not on common law as he stated in his work. Finally, the problem of common law did not lie in the equalization of the mentioned contracts, but rather in the absence of depositum irregulare contracts applied to monetary questions.

Contempt of Court In Facie Curiae; Problems of Justification, Application and Control with Reference to the Situation in Botswana

The existence and exercise of the power to order summary punishment for contempt of court is a much contested terrain. Its antiquity and ubiquity pervade many states across the globe, and in particular in the Anglo-American legal system. This state of affairs has much to do with its very nature and justification. The procedure itself potentially compromises time honoured requirements and practices of due process of law, and also potentially sanctions the fusion of characteristics of an aggrieved person, prosecutor and judge in the same person. Notwithstanding these misgivings, it has continued to be practiced in many parts of the world. Given these exceptions to norms, its scope has been very difficult to delineate, to an extent that although attempts have been made to lay down general principles for its application, the range of conduct necessary for its invocation is so amorphous, malleable and indefinite as to present a difficulty in justification. This has raised many questions both as to its legality and or justification. This article is just but one attempt to answer the questions raised, to the extent possible, and later on to survey its exercise in the context of the jurisdiction of Botswana.