Continental European Tradition Research Articles

Paradigma Positivisme Hukum John Austin Di Era Posmodernisme

The purpose of this research is to find out how the legal positivism paradigm of John Austin in the era of postmodernism and explain the relevance of legal positivism in law enforcement in Indonesia. This research uses method of philosophy of law. The results are that John Austin's legal positivism paradigm in the era of postmodernism is increasingly losing its way because it is exclusive. The legal positivism paradigm cannot be a guidance in law because the shortcomings of the legal positivism paradigm include the legal positivism paradigm constructed by Austin that is unable to accommodate important aspects outside the specified elements such as ethical, moral, and religious elements. Although, the paradigm of legal positivism in Indonesia has become the main point of law enforcement because of the continental European legal tradition. However, in practice the legal positivism paradigm is not compatible with the existing legal patterns in Indonesia because: (1) Indonesian society is heterogeneous; (2) Social, political, and economic developments are transforming so rapidly that the law is lagging behind; and (3) Indonesian people are religious but have no absolute ideology of religion.

The philosophy of pharmaceutical regulation-Paternalism or freedom of choice?

When assessing the value of new drugs regulatory authorities across the world frequently make different decisions even though their decisions are based on the same evidence package. In this perspective we argue that even in today's world regulatory and medical decision making is framed by conflicting philosophical schools of thought, namely the liberal tradition of the Anglo Saxon countries pioneered by the Scotsman Adam Smith and the continental European tradition of paternalism that roots back to the German philosopher Georg Friedrich Hegel. We outline the basics of these two philosophical theories and show that countries following the liberal tradition are more reluctant to reject new drugs due to weak evidence. Instead, they leave decisions to a greater extend to those who are affected, namely patients and their caregivers.

Judgment Based on Agreement of the Parties: Analysis from the Perspective of Practitioners’ Experience in Croatia

The paper contains an analysis of judgments based on agreement of the parties, a Croatian model of plea bargaining, drawing on the experiences of three groups of practitioners: judges, state attorneys, and defence counsels. Previously conducted comparative legal analysis, as well as analysis of the Croatian normative framework and jurisprudence, was not able to provide answers to a number of questions about the motivation of the parties to negotiate, on the negotiation procedure which is not recorded in the protocol, about the real and the ideal role of the court, and about the real position of the parties and the victim. Hence, these issues were researched through semi-structured interviews with 60 practitioners and then further discussed in four focus groups. Some of the findings uncovered systemic inconsistencies in everyday legal practice in a number of areas. For instance, judgment based on agreement of the parties is more readily used in cases of serious offences, while other consensual forms of proceedings tend to be used for less serious offences. Informal negotiations at all stages of the criminal procedure have proven to be very popular with practitioners and sometimes even encouraged by judges. Yet, the issue of judicial control of the plea agreement divided the respondents, even though the right to judicial review of criminal prosecution is a fundamental principle of Croatian criminal procedure, which covers not only the fundamental issues of legality and voluntariness of the concluded agreement, but also the purposefulness of the proposed sanction. The victim’s position in the plea-bargaining procedure is considered to be adequate, at least as long as the victim is involved, and there is a tendency to consult the victim even in cases when his or her consent is not required by law. Finally, although it is generally considered that defence rights are well protected, there are problematic issues, namely tariffs or the ‘take it or leave it’ offer, as well as the wide discretion of the state attorney when deciding to enter into negotiations and reach agreement. The qualitative analysis of the findings, which is presented in this paper, should contribute to drafting specific proposals for improvements in the legislation and practice of the judgment based on agreement of the parties in Croatian law. Many of these findings may also be relevant for other legal systems, especially those of the continental European legal tradition, since they may face the same problems and questions related to plea bargaining as a global phenomenon.

Discretional elements in the Brussels Ia Regulation

Following continental European traditions, the Brussels Ia Regulation forms a rigid regime of mandatory heads of jurisdiction, generally not providing jurisdictional discretion. Nonetheless, to some limited extent, the Brussels regime includes discretional elements, in particular when it comes to lis pendens (see Articles 30, 33 and 34 of Brussels Ia). Reconsidering the strong scepticism towards forum non conveniens stipulated by the CJEU in its Owusu case, the fundamental question arises whether a substantial form of discretion concerning jurisdictional competence might be (in)compatible with the core principles of the Brussels regime.

The Last Russian Balance Scientist of the 20th Century

The main stages of creative career of professor of Saint Petersburg State University Valery Viktorovich Kovalev (1948–2020), who restored the national school of accounting study which treated the balance sheet as a financial model of the company, are shown. The paper characterizes the specifics of the Soviet school of analysis of economic activities of enterprises formed by the start of Perestroika in the USSR. The scope of the methodological tasks placed before accountant theorists by new business environment in the conditions of the development of post-Soviet economy in Russia is shown. The paper reveals the methodological basis of the methods, suggested by V.V. Kovalev, of analysis of accounting reporting of legally independent business entity in the conditions of market economy, as synthesis of the developments of national accountants of the early 20th century and conceptual framework of English-American school of corporate finance of the late 20th century. The relation of the content of the works by Kovalev to the provisions made by A.P. Rudanovsky (1863–1931) is characterized. The paper presents the influence of several personal qualities of professor Kovalev as a researcher on the development of his ideas ranging from the set of indicators of dynamic analysis of accounting reporting to a new national school of financial management which united the concepts of the Continental European and English-American accounting traditions for the first time. The paper characterizes educational activities of V.V. Kovalev in the 1990s and reveals the content of his works regarding the history of financial science. The success of Kovalev as a propagandist of accounting as science is explained.

How Prosecutorial Independence is Lost: An Empirical Look inside South Korea’s Bureaucratically Organized Prosecution

Prosecutorial independence is often conceived of in terms of the separation of powers. But it can also be understood from the perspective of mechanisms of accountability for prosecutors. The Anglo-American legal tradition has historically relied on democratic accountability for prosecutors (i.e., their selection by elections or elected politicians, control by grand jury, private prosecution, etc.). By contrast, the Continental European tradition has depended on mechanisms of bureaucratic accountability for prosecutors (i.e., their selection by meritocratic exam, hierarchical supervision, merit promotion, etc.). Comparative analysis of prosecutorial accountability mechanisms, which both establish and set limits on independence, can give us a fuller sense of the concept of prosecutorial independence. This paper examines prosecutorial independence in South Korea. Its prosecutorial institutions are derived from Continental sources, mainly Germany and Japan. The Korean people have become increasingly outraged towards their prosecutors for perceived politicization. In scandal after scandal, for decades, the Prosecutors’ Office has attacked the president’s enemies and protected the president – and his or her friends. By 2020, opinion polls showed that prosecutorial reform had become the second most important political issue for the public, after the global coronavirus pandemic. This paper – based on interviews with Korean prosecutors, judges, lawyers, and law professors – explains how the Korean Prosecutors’ Office experiences politicization, despite its Continental European organizational framework. It focuses on how independence is lost in three key areas: personnel policy, investigations, and charging decisions. The paper demonstrates how mechanisms of bureaucratic accountability for prosecutors can fail to establish prosecutorial independence. To summarize the paper’s conclusion: the centralized, hierarchical system for supervising prosecutors, including bureaucratic promotion, in theory establishes rational management and quality-control over prosecutors. But in reality, these mechanisms allow the upper echelons of the prosecutorial bureaucracy, and the politicians that appoint them, to exercise firm political control over the entire system.This working paper is part of a larger whole. Other parts discuss the history of the Korean Prosecutors’ Office, how reformers have sought to import elements of the Anglo-American independence style, and how Korea’s experience helps in conceptualizing prosecutorial independence in comparative perspective.

The contribution of V. V. Kovalev in the development of theory and practice of accounting, financial management and statistics in Russia

The article describes the main stages of the creative path of the professor of St. Petersburg State University Valery Viktorovich Kovalev (1948–2020), who made a significant contribution to the revival in the 1990s of the Russian school of balance sheet science and financial analysis, considering the balance sheet as the most optimal financial model of a company. The features of the traditional Soviet school of analysis of the economic activity of enterprises, formed by the beginning of perestroika in the USSR and, to a certain extent, unable to satisfy the information needs of interested persons in the new economic conditions, are characterized. Demonstrates and reveals the range of methodological tasks posed to accountants — theorists by new conditions of management during the formation and further development of the post-Soviet economy in Russia. The content of the basis proposed by V. V. Kovalev methods of analysis of accounting (financial) statements of a legally independent business entity in modern conditions of a market economy as a synthesis of the developments of domestic balance sheets of the early 20th century and the conceptual foundations of the Anglo-American school of corporate finance at the end of the 20th century. The article characterizes the connection between the content of Professor Kovalev’s works and the provisions of the works of the famous Russian theorist in the field of accounting A. P. Rudanovsky (1863–1931). The development of the works of V. V. Kovalev from a set of indicators for the dynamic analysis of accounting (financial) statements to a new national school of financial management, which for the first time combined the concepts of continental European and Anglo-American accounting traditions and practices. The educational activities of V. V. Kovalev in the 1990s, the content of his works in the field of the history of financial science in Russia, including those created at the St. Petersburg State University, is revealed.

Regulating Sin in the City: The Moral Geographies of Naval Port Towns in Britain and Germany, c.1860–1914

Naval towns were regarded as potent symbols of imperial power. Beneath this image however, contemporaries were concerned about the prostitution and heavy drinking which were associated with the sailortowns of naval ports. While historians have analysed merchant ports to explore social structures and economic networks, this study will evaluate how imperial and national discourses created distinct moral geographies which separated sailortown from the more ‘respectable’ urban spaces. We shall argue that while the naval and civic authorities in Portsmouth and Kiel shared the concern that a sailortown culture had the potential to undermine naval effectiveness, they imagined and regulated urban space differently. In imagining, analysing and regulating sailortown, the British authorities and social reformers drew inspiration from colonial missionaries in their Empire. In contrast, their German counterparts focused on national and moral degeneration and followed a more continental European tradition in regulating urban space. Although, historians have prioritised economic forces in shaping urban space, this article will argue that imperial and national cultural discourses were critical in how contemporaries imagined and regulated moral geographical boundaries in the nineteenth-century city.

Versions of the Natural

This volume explores new ways of understanding medieval and early modern conceptualizations of nature in light of current developments in critical animal studies, ecocriticism, new materialism, as well as our expanding knowledge of premodern philosophy, medicine, and encyclopedism. The articles engage numerous disciplines, including philosophy, history of science, history of ideas, and Anglo-Saxon, French, and English literary studies; their approaches represent a broad range of Anglophone and Continental European academic traditions. Collectively, the volume brings to light tensions and contradictions in premodern ideas of “nature” and “the natural.” The “versions of the natural” that emerge are more ecological and less anthropocentric than in much previous work in this area, their emphases correspondingly more philosophical, scientific, even secular, than religious or theological. All contributions combine the detailed study of specific texts and problems with wider historical, theoretical, or philosophical inquiry.

Abuse of Companies Through Choice of Incorporation?

This paper explores the concept of abuse of law in the context of the choice of the state or country of incorporation: Can the choice of a particular jurisdiction constitute “abuse”? The case law of the Court of Justice of the European Union (CJEU) on the freedom of establishment for companies has in principle left open the possibility for the Member States to take measures against “abuse” at least in specific cases. We explore two scenarios. First, we highlight cross-border incorporations of private limited companies and look at the systemic consequences of a line of judicial decisions that started with Centros and compare them to regulatory competition and the role of ‘pseudo-foreign incorporation statutes’ in the United States. Second, we look at cross-border mergers, comparing them with ‘reverse mergers’ in the US, a phenomenon that some scholars and practitioners have considered problematic and that allows an ex post choice of jurisdiction for established corporations. While the number of firms making use of these opportunities has remained relatively small, the changes had a systemic effect. Restrictions on the choice of incorporation are often not designed to protect specific stakeholders of the firm (such as shareholders, employees, or creditors), but rather to protect the state’s lawmaking authority concerning companies (corporations) primarily active in its territory. Member States have historically employed restrictions on the choice of incorporation to discourage cross-border incorporations and to protect their laws from regulatory competition. Overall, the CJEU’s case law has left us with a vision for corporate law without space for a doctrine of abuse. The court’s vision is rooted in the idea that informed market participants are informed actors that understand that different laws govern forms of companies from different countries and adjust their expectations accordingly. This ‘self-protection’ model may be at odds with many Continental European traditions but was likely an inevitable consequence of the freedom of establishment. Nevertheless, Member States have been able to able to compensate for the loss of control over some aspects of the law of business organization through insolvencification. Consequently, there does not appear to be a strong need to extend abuse of law as a doctrinal mechanism.

The Valhalla saga by Snorri Kristjánsson: perception of the Old Norse culture in modern Iceland prose in English

The paper deals with The Valhalla saga (2013–2015), the novel trilogy by Snorri Kristjansson, the Icelander who writes in English and is familiar both with the Icelandic and the Anglo-American traditions of reception of the Old Norse. The question is how these two ways of reception interact in the trilogy. In modern Icelandic literature, the way of reception depends on the genre of the works referred to: if the modern work is based on sagas, its starting point is the text of a particular saga, but if it is based on mythology, the main focus is on the plot of the myths, without regard to particular texts. Besides, the Anglo-American (as well as the continental European) tradition of reception deals with some general “Viking” universum, with original persons and plots that are not related to particular ancient texts. The universum can be heroized or romanticized. The Valhalla saga begins as a historical novel and gradually develops into a mythological novel, as the plot of Ragnarok becomes the main subject matter. Still, while the mythological element in the novels increases, the historical one also becomes stronger, and the battle of the gods and the forces of chaos is attributed to the exact date in the history of the North. The Valhalla Saga is a complicated synthesis of the Icelandic and the Anglo-American ways of reception of the Old Norse universum, but the inertia of the both literary traditions is overcome in the trilogy.

A RETRIEVAL OF HISTORICISM: FRANK ANKERSMIT'S PHILOSOPHY OF HISTORY AND POLITICS

ABSTRACTFrank Ankersmit is often perceived as a postmodern thinker, as a European Hayden White, or as an author whose work in political philosophy can safely be ignored by those interested only in his philosophy of history. Although none of these perceptions is entirely wrong, they are of little help in understanding the nature of Ankersmit's work and the sources on which it draws. Specifically, they do not elucidate the extent to which Ankersmit raises questions different from White's, finds himself inspired by continental European traditions, responds to specifically Dutch concerns, and is as active as a public intellectual as he has been prolific in philosophy of history. In order to propose a more comprehensive and balanced interpretation of Ankersmit's work, this article offers a contextual reading based largely on Dutch‐language sources, some of which are unknown even in the Netherlands. The thesis advanced is that Ankersmit draws consistently on nineteenth‐century German historicism as interpreted by Friedrich Meinecke and advocated by his Groningen teacher, Ernst Kossmann. Without forcing each and every element of Ankersmit's oeuvre into a historicist mold, the article demonstrates that some of its most salient aspects can profitably be read as attempts at translating and modifying historicist key notions into late twentieth‐century categories. Also, without creating a father myth of the sort that White helped create around his teacher William Bossenbrook, the article argues that Ankersmit at crucial moments in his intellectual trajectory draws on texts and authors central to Kossmann's research interests.

Introduction to the Special Issue: The Right to the Protection of One's Own Image in Ibero-America and Its Relevance for the Right of Publicity in Common Law Countries

Introduction to the Special Issue: The Right to the Protection of One's Own Image in Ibero-America and Its Relevance for the Right of Publicity in Common Law Countries

Telemetric Remote Monitoring Of Cardiac Devices. Is The Future Of Medicine A Liability Trap For The Physician.

Objectives Telemetric remote monitoring of cardiac pacemakers and implanted defibrillators constitutes significant medical-technical progress and an improvement of healthcare. However, for the car-diologist providing aftercare, this also incurs liability risks which he should be aware of and take into consideration. This article presents the reason for and limits of said liability and of the re-sponsibility of the acting cardiologist. The cardiologist is aware of his risks and is advised on how to avoid them. Methods The legal situation is examined from the perspective of continental European legal tradition, namely from the German and Italian perspectives. The authors examine both aspects in Penal Law as well as in Civil Law and show which agreements and patient information can minimize the liability risks for the cardiologist. Results The article clarifies whether alarms only need to be evaluated during consultation hours and what consequences arise if data transmission does not occur or the cardiologist is unable to re-ceive the data. Furthermore, the patient's cooperation duties for the individual products and the significance of a patient information talk with the doctor are elucidated. Conclusions Although the medical side, including patient satisfaction and economic aspects, is well backed-up internationally, expert legal literature has not yet adequately addressed the problem. However, no "telemetry law" is required, the legal issues can be solved within the established liability and re-sponsibility category and the terms of "breach of duty of care"/"imperizia". The following paper lines out the SOP, a doctor has to follow it to avoid liability and to ensure that patients have bene-fits from telemetric remote monitoring.

A Cross-country Study of the Effects of Institutional Ownership on Credit Ratings

A considerable number of studies have examined the relationship between corporate governance (CG) structures and corporate performance (e.g., Yermack, 1996; Gompers et al., 2003; Beiner et al., 2006; Renders et al., 2010; Ntim et al., 2012; Kumar & Zattoni 2013; Griffin, et al., 2014). In contrast, despite its importance as demonstrated by the recent financial crisis, studies examining why and how a corporation’s CG mechanisms might influence its credit ratings are rare (e.g., Switzer and Wang, 2013;Matthies, 2013; Tran, 2014). This research, therefore, seeks to contribute to the extant literature by exploring the effects of (CG) mechanisms on corporate credit ratings. Specifically, using a sample of 200 firms from 10 OECD countries over ten years covering the pre- and post-2007/08 global financial crisis period from Anglo American (i.e., Australia, Canada, Ireland, UK, and US) and Continental European (i.e., France, Germany, Italy, Japan and Spain) traditions and employing a total of 200 listed companies, this paper hopes to achieve a number of objectives. First, the paper attempted to assess the levels of compliance with, and disclosure of, CG principles contained in the 2004 OECD CG Code in firms from two different traditions: Anglo America and Continental Europe. Second, the paper sought to investigate the relationship between CG mechanisms and credit ratings. These relationships will be explored by employing firm-level CG mechanisms (ownership structures measured by Institutional Ownership) by accounting for firm-level control variables (e.g., firm size, growth, profitability, and leverage) based on a multi-theoretical framework that incorporates insights from agency and legitimacy theories. The findings revealed that there was a strong negative relationship between institutional ownership and credit ratings. From the descriptive analysis, it was shown that institutional owners did not have a very high credit rating. When the control variables were assessed, it was shown that they had a negative influence on the credit ratings with sales growth and leverage and positive significant relationship with firm size, corruption index, power distance and Anglo American countries.

Guerilla Eats and Bicycle Espresso. The Changing Contemporary Food Culture of Urban Helsinki

The Finnish urban food culture traditionally differs from continental European traditions. Restaurants, bistros, eateries or street food have never been similarly integral to everyday life as perhaps in many world cities. In Helsinki, the relatively young urban history, strict regulations on the sales of food and alcohol, diminishing food traditions, modernist urban planning and strong public control of the cityscape, have all contributed in limitations regarding urban food culture. However, since early 2000s, demand for more diverse urban food and restaurant culture has surged among the younger generations along with a rediscovery of domestic culinary traditions. Public debates and activism concerning the rigid bureaucracy related to food culture have resulted in culinary culture strategies and re-considering food as part of the urban culture, contemporary practices, and development of urban districts. For Helsinki, the relative success of these changes has been integrally connected to citizen campaigns and information distributed in social media, as well as previous stagnation of both urban food culture and public policies. The paper looks into small-scale citizen-led cases of urban food culture development in Helsinki over the past years, with focus on the story of “Restaurant Day”, its origins as an illegally organized temporary event turned into a global phenomenon – before its obliteration in a post-temporary reality. The cases are set against histories of Finnish food culture and current viewpoints on foodways as generators of urban groups and new identities. By reviewing the handling of contemporary Helsinki-based food practices, especially in media and public documents, the paper evaluates how urban food culture and the sense of ownership in public space and the city at large have activated communities and created actual policy changes.

Reading Marx with Levinas

Emmanuel Levinas is a profoundly influential figure in several post–World War II continental European philosophical traditions. A growing scholarship has started to explore the links between his work and Judaism and, inter alia, phenomenology, feminism, and deconstruction, but very little has been written in the English-speaking world on the connections between his thought and that of Marx. This essay is an attempt at an encounter between the two thinkers, exploring how Levinas’s radical critique of ontology in the Western philosophical traditions can be brought to bear on Marx’s antihumanist critique of capitalism as a way to think of an alternative ethical stand that starts from alterity, which is where the essay finds the spirituality of both thinkers to reside. While the theoretical planes on which they operate are different, through a difficult but necessary conversation, Levinas and Marx can pose to one another fundamental questions with crucial implications for their orientation.

Perspectiva histórica de la Jurisdicción Administrativa en América Latina

Desde el punto de vista de la influencia estadounidense, el texto analiza la historia de la jurisdicción administrativa, a partir del siglo XIX, de los 19 países latinoamericanos de origen ibérico (Argentina, Bolivia, Brasil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, México, Nicaragua, Panamá, Paraguay, Perú, República Dominicana, Uruguay y Venezuela). Examina su sistema judicial único y el due process of law procedimental y previo a las decisiones de la Administración, campo fértil de la primary jurisdiction, en pugna con la cultura europea continental arraigada en el derecho administrativo de América Latina. Al exponer las contradicciones de la jurisdicción administrativa en los países latinoamericanos, ocasionadas por la importación de reglas sin la debida contextualización, el texto busca identificar tendencias y avivar una perspectiva en cuanto a la construcción de un modelo propio de justicia administrativa en América Latina, valiéndose de la experiencia tanto estadounidense como de la Europa continental.

A Historical Perspective on Administrative Jurisdiction in Latin America: Continental European Tradition versus U.S. Influence

Abstract From the perspective of U.S. influence, this text analyses the history of administrative jurisdiction, starting from the 19th Century, in the 19 Latin American countries of Iberian origin (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Cuba, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru, Dominican Republic, Uruguay and Venezuela). The analysis includes the U.S. unified judicial system (generalized courts) and procedural due process of law to decisions by the administrative authorities, the fertile field of primary jurisdiction, which is in conflict with the Continental European tradition firmly established in Latin American administrative law. While setting out the contradictions of administrative jurisdiction in Latin American countries that result from importing rules without putting them in the proper context, the text seeks to identify trends and create perspective to build a model of administrative justice specific to Latin America, drawing on the accumulated experience of the United States and Continental Europe.

The Right to Information from the Procedural Standpoint (Judicial and Non-Judicial)

The author takes a general descriptive approach to the system of jurisdictional review of decisions concerning access to official information in Latin America, with the aim of enabling a future comparative administrative law study on information access in the People’s Republic of China. The first two topics are related to an overview of the right to information access in Latin America and the corresponding laws, with imprecise rules that lead to behavior by the administrative authorities that is subject to review of dubious effectiveness, so that the authorities are verging on a state of immunity incompatible with the Rule of Law. The third part is about the developments in Latin America up to the present day, jurisdictional review (judicial and non-judicial) of administrative decisions not only in terms of their formal legality but, above all, their substantive legality, i.e., a review of the content of the administrative decisions, including the discretionary administrative powers and margin of administrative appreciation. The fourth topic, the due process clause, influenced by the USA, is discussed in the context of Latin American information access law, in comparison with the Continental European tradition of administrative law. The fifth and final point concerns the models of jurisdictional review of decisions on information access within the sphere of the OAS (Organization of American States) and Latin American countries. Among other conclusions, the author states that the search for an effective information access system that does not necessarily depend on opting for a model already established in Brazil, Latin America, the USA or Europe; what is of fundamental importance is to provide the interested parties with access to a fair trial guaranteeing their right to information access except in cases in which secrecy is necessary and justified according to the international human rights criteria.