Genuine Law Research Articles

Power variations in fractional Sobolev spaces for a class of parabolic stochastic PDEs

We consider a class of parabolic stochastic PDEs on bounded domains $D\subseteq\mathbb{R}^d$ that includes the stochastic heat equation, but with a fractional power $\gamma$ of the Laplacian. Viewing the solution as a process with values in a scale of fractional Sobolev spaces $H_r$, with $r < \gamma - d/2$, we study its power variations in $H_r$ along regular partitions of the time-axis. As the mesh size tends to zero, we find a phase transition at $r=-d/2$: the solutions have a nontrivial quadratic variation when $r<-d/2$ and a nontrivial $p$th order variation for $p= 2\gamma/(\gamma-d/2-r)>2$ when $r>-d/2$. More generally, suitably normalized power variations of any order satisfy a genuine law of large numbers in the first case and a degenerate limit theorem in the second case. When $r<-d/2$, the quadratic variation is given explicitly via an expression that involves the spectral zeta function, which reduces to the Riemann zeta function when $d=1$ and $D$ is an interval.

Late Tolstoy’s Perception of Law

ABSTRACT Tolstoy’s literary works, as well as a number of events in his life, leave no doubt about the writer’s deep familiarity with law in both the theoretical and practical spheres. In his later years, this served as a basis for his sharply critical position in relation to law as such. Tolstoy interprets law as a pseudoscience written in an unnatural language, aimed at allowing the ruling classes to oppress the people and justify violence. Law (pravo) replaces evident moral law with pseudo-law in the form of an arbitrary legal establishment. Pseudo-law distorts the true relationship among morality, religion, and legal institutions. Part of Tolstoy’s critique stems from his clash with positivist interpretations of law that reject natural law. Tolstoy asks a number of important questions regarding the foundations and premises of law: What is a human court, according to positive laws adopted at the whims of legislatures, without the absence of the prospect of the Last Judgment? What can be considered genuine law? Are there laws more important and more binding than juridical ones? Instead of having his questions answered, Tolstoy is still reproached as an anarchist and legal nihilist.

Back to the Legal Middle Ages?

ABSTRACT Russia initiated the creation of the Eurasian Economic Union and the shaping the all-encompassing Greater Eurasian Partnership. For these geopolitical projects to successfully move forward, Russia must place its bets on using the toolkit of international law, while encouraging the development of regional and transregional integrational law and the systemwide modernization of its own domestic legal system. Accordingly, it is in Russia’s interests to preserve a vitally important quality of its legal system—openness to international and supranational law—as well as to strengthen and defend international law and refute all accusations that international law is ineffective or has even already collapsed. All theoretical constructs and statements about how international law is at the brink of a profound crisis contradict objective truth and common sense. They were only needed in order to untie various actors’ hands in international affairs. In actuality, adherence to international law is as necessary as ever. Without it, decent international cooperation cannot be restored, peaceful coexistence and solutions to global problems cannot be provided, and development for all cannot be achieved. It is vital to understand that it is in fact international law and supranational law that are the genuine law, while national law, on the contrary, often merely legitimizes lawlessness and barbarity. Prominent Russian legal scholars were writing about this at length and with authority in the early 20th century. Furthermore, today international law is only one part of the global regulatory system.

Pardoning War Criminals and Genocidaires? The Vocation and Limits of International Criminal Law

Although the law of pardon has always formed part of legal systems, there exists a gap in international criminal law in this regard. On closer scrutiny, it becomes clear that significant normative resources for a pardoning regime can also be identified in international criminal justice and that it may fulfil relevant complementary and corrective functions in the context of international criminal justice. In any event, the unreflected maintenance of the status quo is not a convincing solution. Rather, it is time to have a serious debate on a genuine law of pardoning in international criminal law, ie one that takes into account not only individual-humanitarian considerations but also reasons of “good policy” and the common good. This goes hand in hand with clarifying who should be responsible for the handling of such a pardoning regime in international criminal law.

Indonesian Law Enforcement; between the Ladyand Banyan TreE

Indonesian law enforcement had a different characteristic. Usually, we know the lady symbol for justice and law enforcement. Actually, Indonesia have another symbol for justice, is a banyan tree. The different is, the lady symbol said justice is a right or wrong, and law make the punishment. The banyan tree symbol said, justice is to looking for how to bringing back the balances. Indonesia should be use the Pengayoman. It’s mean, how to make the legal problem is finished with win-win solution, not who is right or who is wrong. This characteristic is growth from Indonesian genuine law (adat law/custom law). This model (pengayoman), can minimize conflict after law enforcement and pengayoman want to make the legal problem is fixed by them.

Naturalizacja prawa kanonicznego w optyce prawodawczej

Obecnie toczy się dyskusja na temat naturalizacji prawa – celów, koncepcji, modeli, efektów tego zjawiska. Z tego powodu, że prawo Kościoła katolickiego jest prawdziwym prawem, wspomniana dyskusja może być przeniesiona na obszar tego właśnie prawa. W związku z tym można sformułować następujący problem zawarty w pytaniach: czy jest możliwa naturali­zacja prawa kanonicznego, a jeżeli tak, to w jaki sposób ta naturalizacja miałaby przebiegać? Niniejszy artykuł jest skromną próbą zaprezentowania zagadnienia naturalizacji prawa w kontekście prawa kanonicznego. Jako pierwsze zostało pokazane prawo kanoniczne jako zjawisko naturalne i jako zjawisko, które można „unaturalnić”. Następnie zostały zademonstrowane przykłady naturalizacji sensu largo i sensu stricto. Ostatnia część artykułu zawiera kilka wskazówek i zasad istotnych dla procesu naturalizacji prawa kanonicznego. Wniosek jest następujący: naturalizacja musi być zauważona przez prawodawcę kościelnego, lecz naturalizacja prawa kanonicznego powinna być dokonywana w ograniczony sposób w zgodzie i z poszanowaniem dla specyficznych cech prawa kanonicznego.

Kant’s republican theory of justice and international relations

Kant’s primary concern in writing on international relations is how to achieve ‘justice’ ( Recht) between states. This means that instead of reading Kant as a theorist of peace or world government, as IR theorists have usually done, he is better read as a theorist international justice. His view of justice, which identifies it with a legal order that respects freedom as independence or nondomination, is broadly republican. But he equivocates on the possibility of justice at the international level, and this narrows what is usually seen as a wide gap between Kant’s thought and political realism. The paradox his uncertainty reveals is that it is wrong for states to remain in a lawless condition yet impossible for them to escape it so long as they remain independent. An international order cannot generate genuine law because there are no institutions to make, interpret, or enforce it. This means that states are entitled to determine their own foreign affairs. The gap between sovereignty and justice cannot be closed so long as these ideas are defined as they are within the state. The problem is not that a full, secure, and nonvoluntary system of justice that preserves the sovereignty of states is contingently unlikely. It is conceptually impossible. This conclusion poses a challenge to current theories of global justice.

International Courts and Legalism in International Law

In this article, I argue that legalism, understood as a stronger commitment of states (and other subjects) to the observance of the rules of international law, was fostered by the dynamic development of international courts and tribunals, which started in the 1990s. This contribution has manifested itself in various ways, both external and internal. The multiplication of international courts, coupled with the widespread compulsory jurisdiction, has been crucial to strengthening state commitment to adhere to their international obligations. The interpretation and application of international norms ceased to depend solely on the subjective discretion of states. Therefore, judicialisation is rightly presented as a process of taming the Leviathan and gradually subjecting it to the international rule of law. The problem of legalism in the context of international courts can, and should, also be examined in its “internal” aspect. This entails the examination of a number of issues connected with the courts’ status, competence, function, case law coherence and stability, judgment implementation, etc. Despite the problems and risks involved, the proliferation of international courts and tribunals can be perceived as one of the most important components of the dynamic transition of international law in recent decades. In this sense, one might argue that Hart was right in claiming that the functioning of courts, endowed with compulsory jurisdiction, is one of the conditions for recognising international law as genuine law. Another important effect of the judicialisation on international law is that, at the very least, certain international norms have acquired “objective” nature, detached from the will of states. This is due to the interpretation and application of these norms no longer depending solely upon the subjective discretion of states, but rather becoming subject to consideration and examination by an independent judicial body.Judicialisation is, thus, rightly presented as a process of taming the Leviathan and gradually subjecting it to the international rule of law. Beyond any doubt, this process and its consequences markedly change the face of international law. The multiplication of international courts results in expanding the judicial institutional layer, making international law less horizontal. Additionally, in consequence of growing case law, the system of international law becomes more complex, developed, and mature. The development of international law is a natural aspect of the judicial function. This is due to the fact that international norms are, in many cases, incomplete and unclear, necessitating their interpretation, adaptation, and development in particular cases.

Where Human Trafficking Profits: The Hostile Work Environment of Adult Entertainment Establishments

The purpose of human trafficking is to strip a human being of their autonomy and freedom in order to force, control, and manipulate them to engage in either commercial sex acts or labor for little to no wages; and for the benefit and profit of the trafficker. As stated in King v. Hillen, the purpose of Title VII is, “to liberate the workplace, through law, from the demeaning influence of discrimination and thereby implement the goals of human dignity and economic equality in employment.” Although the application of Title VII sexual harassment may be the very last thing to come to mind as a genuine employment law claim in adult entertainment clubs; the crime of human trafficking exists within these clubs; often with the knowledge, involvement, or acquiescence of managers and owners. Because employers either condone or promote a hostile work environment for female employees, and because female victims of human trafficking are often employed in this capacity, liability for the employer can be established on the basis of Title VII sexual harassment discrimination. This article suggests that it is no longer appropriate to, “have our cake and eat it too.” If adult entertainment clubs are licensed and maintained as legitimate business establishments, then these employers must abide by all aspects of the law, and not just some. This article proposes that by holding these employers liable for the hostile work environment, it will also serve to decrease human trafficking.

Modelling of a’fortiori reasoning

The paper presents the model of two variants of a’fortiori reasoning applicable in the case of statutory law as well the example of the genuine law case, which has been modeled with use of established methodology. The model of reasoning assumes the existence of “less–more” relation between the analyzed actions, which has been expressed by means of strict partial order and some additional assumptions. The paper also contains the implementation of the analyzed example.

Love and Solipsism: Law and Arbitrary Rule in Classical Drama

What distinguishes the rule of law from the lawless, arbitrary rule of brute force — which can almost interchangeably be described as tyranny or as anarchy — is that in a lawful rule the government’s coercive power operates according to principles of generality, regularity, fairness, rationality and public-orientation, whereas the arbitrary or lawless ruler wields power in the service of his (or their) own self-interest, or by mere ipse dixit. Law is to arbitrariness as reason is to mere will. In this paper, I explore the dichotomy between lawful and arbitrary rule as it has been represented in literature. I examine first the primal foundation of lawful rule, as depicted in Aeschylus’ Oresteia, in which law is generated by domesticating the use of force, through persuasion and willing union. Athena creates lawful order, not by fiat, but by marrying the Furies to “Persuasion”: the ambient coercive powers of the people — morally justified, yet dangerously personal urges for vengeance — will now be rationalized in accordance with public, logical, and articulable principles. By contrast, in Shakespeare’s Richard III, we witness the subversion and near-destruction of lawful order by a man who will tear apart the newly framed lawful order and make the state serve his own private ends. The contrast of these two dramas reveals that the tyrant is essentially a solipsist: his ultimate goal is to make the real world obey his say-so. And if law is like love, the tyrant is like the rapist: the forced surrender of intimacy is the best facsimile of love the solipsist can create; but it can never actually be love, because the two are separated by the same invisible and impenetrable boundary that separates truth from falsehood, or genuine loyalty from the rule of terror.I conclude with a look at the dissenter living in a lawless order, as depicted in two variations on the story of Antigone — the first by Sophocles and the second by Jean Anouilh. In both, the lawless, arbitrary rule is challenged in the name of law, and in each, the ruler nearly succeeds in substituting his private realm of mere words for the public realm of actual things. What emerges from this study is that the basic premise of all lawful order — the root of all secure liberty — is that there is a gap between the will of the ruler and the genuine law. Whenever such a gap exists — whenever it is meaningful to deliberate over whether the ruler’s commands are, in fact, law — the society will, to that extent, become one of lawful order and of (at least some) freedom. The link between tyranny and solipsism is that where the ruler’s will is accounted the law, there can be no genuine law, and thus no freedom. The paradox whereby tyranny is lawless is explained by the fact that tyranny is an attempt to impose by convention what does not originate in nature — and in the end, neither physical nature nor the nature of human relationships can be subjected to such commands. The ultimate demand of the lawless ruler(s) is to substitute his (or their) word for the world — to compel the subject to love him (or them). And because that can never be accomplished, arbitrary rule is doomed to eventual collapse.

What Useful Role (if any) Could Legal Positivism Play in the Study or Advancement of International Law?

What useful role (if any) could legal play in study or advancement of law? For most of those who remember this once fashionable term at all, international legal is redolent of early years of twentieth century--of Lassa Oppenheim (1) at best, and at worst of his model, John Austin, who famously denied that law is or ever could be genuine law at all, properly so called. (2) law in its central and most usual sense is law set by a sovereign individual or a sovereign body ... to a person or persons in a state of subjection to its author, (3) and legal positivism is doctrine that there is and can be no law but law. (4) Seen in this way, law, which rests substantially on opinio juris and the general principles of law recognized by civilized (5) will never fit positivist paradigm. (6) So why revive legal positivism? I would suggest that despite its longstanding antipathy toward legality and its radical failure as a general theory of law, legal has always played a useful role in progressive development of legal institutions. Positive law has been part of law from beginning and will become increasingly important as institutions become stronger. Legal is a powerful tool for bringing greater clarity into law. The better and more just constitution of society becomes, more important and useful legal will be. INTERNATIONAL LAW The traditional understanding of law was well-stated by Henry Wheaton when John Austin made his first positivist attack on law of nations: International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from nature of society existing among independent nations; with such and as may be established by general consent. (7) The basis of law rested for Wheaton, as for earlier great publicists Hugo Grotius (8) and Emer de Vattel, (9) on reason and human nature, subject to specification by agreement. The clarifying provision of definitions and modifications by consent is basis of positive law. Modern law began with Hugo Grotius, whose turn to reason and common good supplanted earlier sectarian conceptions of law of nations. All of this would still be true, Grotius insisted, even if there were no God. (10) Grotius found law in social nature and mutual obligations of humanity, applied to states. (11) Emer de Vattel, who revised and restated in accessible French Latin doctrines of Grotius and Christian Wolff, (12) asserted that precisely because society has no authority capable of commanding its members and forcing obedience, (13) states are bound first and foremost by laws that arise from natural society of human beings. (14) Vattel identified four varieties of law. The law of nations arises directly from reason, applied to nature of men and states. (15) The law of nations protects zone of liberty and independence within which states may depart from reason, provided they do no injury to others or common good. (16) The conventional law of nations concerns obligations that nations assume by treaty, binding only on contracting parties. (17) And law of nations is founded on tacit agreement among those nations who choose to observe it. (18) Nations may be presumed to consent to voluntary law of nations, making it in a sense positive law, but treaty law and customary law, while both law as to those who choose to accept them, are also arbitrary, and therefore subordinate to necessary and voluntary law of nations. …

Study on Species-area Relationships in the Southern and Northern Slopes of the Tianshan Mountains

Species-area relationships (SARs) were discussed in the past decades,and they were supposed to be one of the few "genuine law" in ecology. Xinjiang is located in the hinterland of the Eurasia,where there is a high radiation but a low precipitation. In this study,the patterns and mechanisms of SARs in different arid vegetation types in the Tianshan Mountains were explored by investigating sample plots. The species-area curves of steppe,meadow and desert were charted based on 26 nested sample plots,the minimum area of each nested sample plot was 0.25 m2,and the maximum one was 400 m2. All species in each sub-plot were recorded to develop SARs. The logarithmic form power curve (S = c·Az) was applied to fit SARs,and then SARs from different areas were compared with climatic variables by plotting the slope (z value) and intercept (c value) to explore the main factors affecting the patterns of SARs in Xinjiang. The power-law model was used to explain 0.90 ± 0.01 of variance of species richness at different scales. The average value of overall slope was 0.20±0.02,lower than the mean of the world. The slopes of steppe and meadow were 0.13±0.01 and 0.14±0.02 respectively. There was no significant difference between the two vegetation types. However,these two figures were significantly lower than that of desert (0.28±0.02). The climatic variables were classified into three groups:energy,water and climatic stability. In the full climatic models,all the factors were used to explain 80.42% of z value and 91.90% of c value respectively. In all the three factors,water factor was the most important for SARs,and the R2 values of z and c were 69.88% and 66.22% respectively. However,the effects of water factor on z value and c value were quite different,and z value was decreased but c value was increased with the increase of water factor. Similarly,z value was decreased but c value was increased with the increase of species richness. The results reveal that water was the main factor affecting the species-area relationship in this area,and the species richness also played an important role.

‘God or some human’

‘God or some human (Θeὸς ἤ τις ἀνθρώπων)—strangers, who is given credit for laying down your laws?’ This is the opening line of Plato’s Laws. The question was asked by the Athenian Stranger.1 The two other speakers (a Cretan and a Spartan) reply as follows: Kleinias: A god, stranger, a god—at any rate to say what is most just. For us it is Zeus, while for the Spartans, where this man is from, I think they claim it is Apollo. Is that so? Megillus: Yes.2 (i 624a) The Athenian asks about the Homeric story according to which Minos meets with Zeus every nine years to receive help in establishing laws for Crete (624b; cf. Odyssey xix 178-179). The Platonic dialogue Minos 319e makes explicit what is left to implication here, namely, that these meetings took place at the cave of Zeus.3 The Athenian says that it would be pleasant to discuss ‘political systems and laws’ (πολιτeίας...καὶ νόμων, Laws i 625a), and suggests that the three of them should do so while walking the distance from Knossos (where the Laws begins) ‘to the cave and temple of Zeus’ (625b). Kleinias and Megillus agree.4 I want to show: (1) that the opening of the Laws presents what is, according to Plato in this dialogue, the sole alternative (‘god or some human’) in answering the question: what is the source of proper or genuine law?5; (2) that just as Ancient Philosophy 31 (2011) ©Mathesis Publications 311

KETAATAN MASYARAKAT INTERNASIONAL TERHADAP HUKUM INTERNASIONAL DALAM PERSPEKTI FILSAFAT HUKUM

The research is aimed to figure out whether the International Law is a genuine law. This concerns with why the international community is willing to obey the international law though it lacks of formal institutions that are in charge of empowering the law. This is a normative legal research. The data used in this research are the secondary data along with the secondary law material that is in the form of research result. Through this research, it can be concluded that the nature of coordinative relationship among international community - not having a supranational institution that has an authority in making and forcing the validity of certain international regulation at once to the citizens of nations that are breaking the international law – will not decrease the existence and the essence of the international law as a legal norm. The most major factor emerging the acceptance and the obedience of the international community towards its regulation is the awareness and the needs of all people towards which regulation that can offer the law and order, justice, and law enforcement that can be done and of which can not be done in the practice of the international law. The internally emerged obedience will offer a better result that the one emerged by the punishment.

The King's Four Highways: legal fiction meets fictional law

Legal compilations of the twelfth century include the idea that there were four roads in England, on which travellers enjoyed unique protection. This idea has been regarded as a statement of the origin of the King's Highway from which wider definitions grew. In fact, the Four Highways did not exist as a category in Anglo-Saxon law, but were a twelfth-century fabrication that came to be quite antithetical to the genuine law of the highway. The idea was invented by Henry of Huntingdon around 1130. It was subsequently embroidered by Geoffrey of Monmouth, who concocted the stories of two kings, Dunvallo Molmutinus and Belinus, who gave protection to travellers and built roads to guarantee this protection. These ideas were then adapted in legal and literary texts of the twelfth century. Verbal and conceptual overlaps suggest the transfer of ideas back and forth between the legal and literary traditions. The adaptations do, however, reflect real efforts to limit the definition of the highway and the jurisdictional intrusion it represented. The history of this myth thus sheds light on the confused state of English law before the introduction of principles derived from the Roman tradition.

Corrigibility and Law

Corrigibility has generally been designated as the major qualification of a scientific law. Although various other characteristics of a scientific law have been questioned, corrigibility has usually been accepted as one of its essential features. On this basis scientists, positivists, and pragmatists have frequently distinguished between genuine empirical laws and all other assertions that only seem to be laws. The mark of a genuine law in the scientific sense is its corrigibility; the mark of a pseudo law is its non-corrigibility. In this paper I should like to reopen philosophic inquiry into the nature of corrigibility as it is supposedly exemplified in law and to call attention to some of the peculiar difficulties and conclusions attendant on any such inquiry.