Foundations Of Law Research Articles

Criminalizing Sex: Is Consent all that Matters?

AbstractIn Criminalizing Sex, Stuart P Green aims to provide a unified liberal theory of sexual offenses law. Green’s strategy is to provide a rational reconstruction of sexual offenses law that centres consent. In this article, I raise some doubts about whether Green fully succeeds in his aim. Nevertheless, Criminalizing Sex is an impressive book, and essential reading for anyone interested in the liberal foundations of sexual offenses law.

Compensation Fund in Foundations: Indonesia’s Foundation Laws and Auditor Perspectives

Foundations play a pivotal role in advancing social causes and managing donations for the betterment of society. In Indonesia, foundation faces significant challenges that undermine their integrity and accountability. This study delves into the multifaceted issues surrounding foundation management and legal compliance in Indonesia. One thing that needs to be noted in the management of Foundations is the strict prohibition in the Foundation Law that Founders and Foundation Organs are prohibited from receiving salaries, wages, or honorariums (compensation fund), and this prohibition is even threatened with criminal penalties. In their activities, Foundations that receive donations or certain asset amounts are required to have their financial statements audited, and some Foundations have done so. There are differences in assessing the violation from the perspective of enforcing the Foundation Law and from the perspective of auditors. To address these pressing issues, this study adopts a qualitative research approach with content analysis techniques. By systematically analyzing textual data sourced from legal documents, financial reports, and relevant literature, the study aims to shed light on the challenges faced by foundations in Indonesia and identify strategies for enhancing transparency, accountability, and effectiveness within the sector

Law enforcement in the implication of Blue Cooperation – A reflection of China

Blue cooperation is a kind of maritime cooperation with the goal of sustainable development, the tone of openness and inclusiveness, and the means of innovation and sharing, which has a solid foundation in international law. Its connotation has been enriched in the progress of international governance. China has consistently been a steadfast implementer and practitioner of blue cooperation, but is confronted with internal and external challenges amidst a once-in-a-century global transformation. China should draw lessons from existing experiences in international "blue" ocean governance, effectively utilize the cooperative tools provided by international law, focus on common interests among various parties, build a comprehensive, wide-ranging, and multi-level pattern of blue cooperation, deepen a global blue partnership based on equality, openness, and cooperation, and construct a new discourse system for blue cooperation under the concept of a community of shared future for humanity, which aims to achieve new developments in global ocean cooperation governance.

Piercing the corporate veil—the trust connection

Abstract The principle of separate legal entity which forms the basic foundation of company law provides for the company as a separate legal entity. This results in the formation of a veil, so to say, that protects the liability of the directors or other related companies from incurring liability. Under the Doctrine of Piercing the Corporate Veil, the said veil can be disregarded in certain circumstances. Historically, this principle has been restricted to companies incorporated under statute. However, recently, a High Court of India applied the doctrine to a Charitable Trust which is a non-corporate body. With Courts of India not providing any contours or sound reasoning towards the extension of the doctrine to non-corporate bodies, this article examines the application of the doctrine on charitable trusts, the flaws and problems that arise from such application and the possible solutions for the same while tracing evolved and developing jurisprudence surrounding the doctrine in taxation cases and trusts.

Constitutional, Administrative and Criminal Law Regulation of Protecting Rights of Internally Displaced Persons: Foreign Experience and Directions for Improvement

The purpose of the article consists in revealing the constitutional, administrative and criminal law foundations of protecting rights of internally displaced persons, problems of implementing foreign experience and identification of directions for improvement. It is substantiated that the system of individual protection standards is a kind of international mechanism for ensuring first of all the status of rights and freedoms of internally displaced persons, the corresponding guarantees regulated by the norms of universal, regional and special treaties, implemented by authorized subjects of public administration in various spheres of society. Attention is focused on compliance with the Guidelines of 1998, which are the basis of the legal acts of the European Union, the Council of Europe and other democratic countries. However, the existing standards of individual protection are not uniform, and there is no corresponding institutional mechanism. Universal, supranational, regional, mandatory, recommendatory, permanent and temporary standards are singled out. The authors conclude that the Ukrainian authorities are entrusted with important tasks, functions and powers to guarantee the rights and freedoms of internally displaced persons, as well as tasks concerning implementation and protection of such rights and freedoms, restoration of violated rights and implementation of existing international standards and best foreign practices. Therefore, it is natural to improve Ukrainian legislation and ensure effective and accessible procedures. Proposed are ways to solve existing problems in the sphere of social protection, electoral law, housing and land rights, and provision of legal aid.

Examining the complexities of binding international law on international organisations

PurposeThis paper aims to discuss the positioning of international organisations (IOs) in the realm of international law. It proposes a more robust approach, arguing IOs have legal obligations akin to states to the extent which could be fulfilled by them. This paper suggests making IOs parties to international treaties like the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic Social and Cultural Rights (ICESCR) and Geneva Convention 1949 to codify their international responsibilities. In addition, it proposes amending multilateral treaties to grant IOs membership and create binding legal obligations for them, thereby enhancing the overall legal framework for IOs.Design/methodology/approachThe paper opted for qualitative analytical approach of research by referring to international treaties and scholarly papers.FindingsThe authors have evaluated the bindingness of international law on IOs. The authors argue that jus cogens and customary international law are equally binding on IOs. However, treaties could only be binding on IOs to the extent of their consent. The authors have assessed prior violations of IOs. The authors argue that, to prevent such violations by IOs, creating obligations is the first step. Second, amendments are required in the existing international treaties that reflect the foundations of international humanitarian and international human rights law like the Geneva Convention 1949, ICCPR, and ICESCR, to permit IOs to join these treaties, resulting in binding international legal obligations.Research limitations/implicationsThe most prominent assertion of this paper is that IOs as subjects of international law are bound by the principles of international law, including treaty law with consent, customary international laws, general principles of law and peremptory norms. To fulfil these obligations, a regime needs to be introduced wherein amendment is made in treaties to make IOs parties to them and structuring the law on responsibility for IOs. Considering the multifaceted nature of IO, the role it performs in contemporary times requires them to be bound by rules of international law just like states. There is a need to settle their position in global governance and give them more teeth to understand and fulfil their duties to ensure smooth functioning in the long run.Originality/valueThe paper fulfils an identified gap in the positioning of IOs under the international law.

Copyright Law and the Ruse of Culture: ‘Traditional Cultural Expressions and Expressions of Folklore’ as a Conception of Racial Difference

‘Traditional Cultural Expressions’ and ‘Expressions of folklore’ (TCEs/folklore) have received very little critical attention within intellectual property (IP) jurisprudence. Where TCEs/folklore have been treated, it has only been to the extent that international IP does not offer sufficient protection over them as an analogous class of IP or to the extent that TCEs/folklore themselves are philosophically incompatible with IP, and accordingly fail to adequately capture the cultural expressions of indigenous peoples. This article offers a different argument regarding TCEs/folklore which neither seeks their further protection nor their legislative and policy development. Instead, this article traces the genealogy of TCEs/folklore within the imperialist foundations of international law, arguing that TCEs/folklore are the function of an already existing discursive arrangement of power that is consistent with colonial valuations of knowledge and culture.

Трансцендентальные основания права в коммуникативной теории права А. В. Полякова: правовое признание

Introduction. The communicative theory of law put forward in the first years of the XXI century by A. V. Polyakov received further development in the next decade due to the substantiation of the metatheoretical foundation of this theory in the doctrine of legal recognition as the transcendental basis of law. The idea of objectification of law through recognition proposed by A. V. Polyakov becomes the basis of a new humanistic understanding of law, which asserts the key character of trust in legal genesis. Theoretical analysis. The development of the doctrine of recognition as the foundation of legal genesis begins with the substantiation of the idea of recognition of law. A. V. Polyakov connects the very possibility of law with the fact that interacting subjects must not only understand the boundaries of their behavior, but also continuously coordinate them with each other. In this process, each of the subjects must recognize the presence of symmetrical abilities in the counterparty, therefore, recognition is the unity of intellectual and cognitive aspects of law with emotional and axiological one, which asserts the primacy of freedom, equality, dignity and responsibility of the participants in the interaction. From this thesis A. V. Polyakov deduces four aspects of formal equality – communicative equality, normative legal equality, equality as a legal ideal and equality as conformity. Еmpirical analysis. The author considers the conceptual transition from the idea of law as recognition to the principle of mutual legal recognition. Legal recognition as a principle is based on the ontological fact of the existence of Another as a representative of the human race, recognition of the human status of Another means the acceptance by an individual of responsibilities corresponding to the rights of Another as a response to expectations about their own rights. Results. A. V. Polyakov revealed the transcendental foundations of law through the analysis of legal recognition. These data deepen the provisions of the communicative theory of law on the ontological status of law, give the doctrine of legal communication a metaphysical and existential perspective, considering a person in the unity of his / her cognitive, emotional and volitional abilities.

Indonesia's Defense Policy In Addressing Space Threats In Perspective Of Defense Management

Indonesia's Defense Policy In Addressing Space Threats In Perspective Of Defense Management

Rational Foundations of Criminal Proceedings: A View through the Prism of Sociological Considerations

The paper examines the rational foundations of law typified by criminal proceedings. In search of the origins of the rationalistic picture of law, the author, in the course of analyzing the actions of subjects (participants) of criminal proceedings in certain situations, shows the correspondence of criminal proceedings to the rationalistic system of M. Weber, which allows rationalizing in the legal plane the values dominant in society. Law, being a social institution, in the author’s opinion, should be subject to the laws of social life revealed by other disciplines, in particular sociology. Using an interdisciplinary approach to the study of the institutions of criminal justice will allow us to study them in their integrity and discover their new facets. Following this position, the author attempted to analyze the institution of a pre-trial agreement on cooperation through the prism of the theory of rational choice and the teachings of P. Sorokin about crimes and exploits, which made it possible to outline a path for further improvement of this institution, which would correspond to the laws of social development.

A Renaissance of Civic Education and Civic Engagement in Higher Education in the Spirit of the American Founders and Constitutionalism

A growing number of states have responded to negative trends in civic knowledge, trust, and engagement by creating new institutes or schools at state universities, with the express aim of reinvigorating civic education and thoughtful, engaged citizenship. In seeking to increase civic knowledge, champion viewpoint diversity, model civil discussion of ideas, combat polarization, and embrace the civic responsibilities of higher education, these institutes can be seen as carrying forward the American founders’ vision of civic education, the moral foundations of law and constitutionalism, and the constitutional principles of free speech and federalism.

How is The Theory of Law Possible? The Subject Area of Legal Theory in A. Reinach's Phenomenological Project

The article discusses Adolf Reinach's legal doctrine project, as presented in his main work 'The Apriori Foundations of Civil Law'. The author explores the subject matter of Reinach's theoretical discipline of law and the apodictic necessity of apriori laws rooted in the essence of legal concepts. The analysis focuses on the nature of apriori laws that are based on the essence of the legal concept and the correlative relation between apriori laws and their corresponding essence. The legal doctrine of Reinach is examined with special attention to its philosophical and methodological consistency, which is conditioned by the phenomenological method during the period of the Munich-Göttingen community. The author examines the differences between the first project of eidetic-phenomenological philosophy of law and the philosophy of positive law. This article demonstrates how the phenomenological theory of cognition, specifically the theory of science, was incorporated into A. Reinach's apriori doctrine of law. To reveal the problem, it is necessary to establish connections between A. Reinach's 'Apriori Foundations of Civil Law' and Edmund Husserl's 'Logical Investigations'. The article concludes that the concept of the apriori doctrine of law represents the realization of Husserl's theory of science as outlined in the 'Logical Investigations'. The article concludes that A. Reinach defined the subject area of the theory of law by attributing it to the intensional being, relying on E. Husserl's understanding of science. It is argued that the oneness of this subject area of legal theory lies in the intensional (essence-correlative) correlation of the essence of legal concepts and their apriori laws. This study's novelty lies in revealing the epistemological aspects of Reinach's eidetic-phenomenological project, which hold methodological value for phenomenological theory of law.

The Centre Will Not Hold: The Foundations of Environmental Law

The Centre Will Not Hold: The Foundations of Environmental Law

Material Culture, Experimentation, and Household Lighting in Early Rabbinic Judaism

This paper examines how the materiality of lighting influenced the development of ancient rabbinic teachings that would later become the foundations of Jewish law. Drawing on ideas and frameworks from scholarship on material religion, I bring together archaeological finds, experimental archaeology, and references to objects in classical rabbinic literature to argue that the ways that lighting was used provided the earliest rabbis with tools and fodder for developing new expressions of piety that could be performed in one’s household. How lamps, oils, and wicks were used in Roman-era Palestine (second-third century CE) played an influential role in the development of rabbinic Judaism. I show this through rabbinic prescriptions on lighting lamps on Friday evening to mark the onset of the Sabbath, as the different wicks and oils created opportunities for one to choose to perform the custom in rabbinically-prescribed ways. I next demonstrate how the rabbis drew on common lighting practices to reinterpret biblical laws on the now-destroyed Jerusalem Temple cult into expressions of piety that can be performed in households throughout Roman Palestine. In this way, the materiality of light contributed towards the ancient rabbis’ role in transforming Judaism in the post-Temple age.

Обновление методологических основ уголовного права и его применения — главное направление развития отечественной доктрины в современных геополитических условиях в связи с санкционным и военным противостоянием Запада России

The article analyzes the change in the methodological foundations of criminal law and its application in modern geopolitical conditions, the constant sanctions and armed confrontation between the West (represented by the leadership of the USA – NATO and the largest European countries) and Russia in connection with the events in Ukraine.

Институциональные основы уголовного права Российской Федерации

The article is devoted to the analysis of the research activities of the scientific school of the Department of Criminal Law and Criminology of Kuban State University «Institutional foundations of criminal law of the Russian Federation» from the perspective of its retrospective, current state and development prospects in the foreseeable future. It draws special attention to the fact that on February 1–2, 2024, a specialized (thematic) international scientific and practical conference is planned in Krasnodar, dedicated to the 70th anniversary of the founder and head of the school, Professor V.P. Konyakhin. The materials of this conference in the form of reports of participants at its plenary session agreed with the editors are published in the current issue of the federal journal «Russian Investigator» for 2024.

Постклассическая трансформация онтологии уголовного права и необходимость ее институционального переосмысления

The article examines crisis phenomena of a social and legal nature in the functional and substantive foundations of objective criminal law, which occurred in the post-classical period, which are associated with the unreasonable expansion of coercive methods in the system of positive regulation of social relations, and in criminal law — with the loss of exceptional certainty and criminal law dimensions in the policy of recognizing what should be criminal and punishable. The need to eliminate the state of exceptional uncertainty and emergency in criminal and judicial policy is the main message of this narrative.

Теоретичні основи оптимізації логістичних ланцюгів на ринку зерна

The purpose of the study is to study the theoretical basis for the formation and functioning of logistics chains in commodity markets and to model the logistics chain in the grain market in Ukraine. It is determined that the theoretical basis for the formation of logistics chains in commodity markets is the scientific achievements of the theories of world economic thought, in particular, the theories of detailed presentation, both descriptive and normative, are analyzed and structured. It is defined that theories of detailed exposition are theories that describe the cause-and-effect interdependencies of the elements of cooperation; descriptive theories – focus on the development and improvement of the conceptual and categorical apparatus; normative theories are based on the foundations of law. The authors’ own definition of the concept of «logistics chains of commodity markets» is proposed: it is a system of organizations, processes and actions aimed at the effective movement of goods from the manufacturer to the final consumer in the market; this system includes all stages of the supply of goods (production, transportation, storage, marketing, sales and customer service); the logistics chain in the commodity market focuses on meeting the needs of customers and maximizing their satisfaction through the rapid and efficient supply of the necessary goods; the main goal of creating a logistics chain is to provide the highest level of customer service, reduce costs and optimize all processes related to the movement and management of the movement of goods in the market. Based on the analysis of the theoretical basis for the formation and optimization of logistic chains, a scheme of the logistics chain in the grain market of Ukraine has been proposed. It includes 9 stages: from the cultivation of grain crops to distribution and sale either within the national market or on the international market. The number of stages of the logistics chain may vary depending on the hypothesis regarding its formation and further development.

CIVIL LIABILITY OF NOTARIES: LEGISLATION, COMPARATIVE ANALYSIS, JUDICIAL PRACTICE

The publication focuses on the institute of civil liability of notaries, which forms the foundation of professional notarial law. The fundamental nature of this institution, the author argues, is predetermined by the tasks of the notary and the need to create a system of legislative guarantees for their implementation, among which it is the notary’s property liability that occupies one of the first places. The article raises the problem of the effectiveness of the mechanism of civil liability of notaries in the Russian Federation. The stages of development of its legislative regulation are highlighted, the results of the modernization of the institute are summarized. The author formulates specific proposals to improve the current notarial legislation in our country, based on the analysis of judicial practice and the use of foreign experience of legislative regulation.

The Behavioral Foundations of International Anti-Bribery Laws: Results From an International Lab-Type Experiment

The Behavioral Foundations of International Anti-Bribery Laws: Results From an International Lab-Type Experiment