Law Literature Research Articles

Исторические предпосылки разработки иных мер уголовно-правового характера, направленных на ограничение прав лиц, совершивших преступления против интересов Российской Федерации

The relevance of the topic is due to the need for a retrospective analysis of individual measures of state enforcement in order to understand their criminal legal nature. The history of the development of other measures of a criminal law nature in relation to individual groups of crimes is practically not considered in the criminal law literature. Encroachments on the interests of the state the punishment for which has traditionally been one of the most severe among socially dangerous acts prohibited by criminal law are no excluded. Nevertheless, the analysis of historical sources shows that the limits of coercion in this area have changed over time significantly. The changes that took place were related to the policy of the state, namely the humanization of punishment - the mitigation of the means of influence used against persons guilty of committing crimes against the interests of the state. Today, this trend generally continues. Along with the rigidity of the approach, the authorities allow a compromise, reasonably believing that a different impact or border measures can ensure the effectiveness of prevention.
 Traditional methods were used in the study organizing - generalization, analysis, analogy.
 Results. The development of the criminal law science, as well as the humanism ideas dominance, the human resources economy, led to the implementation of a fundamentally different approach in the entire field of criminal law regulation. We believe that the further development of this area will allow us to determine new prospects for countering the crimes of the group under study.

Pluralism and local law in extraterritorial spaces

AbstractBased on ethnographic research, this article shows how legal orders are being established in spaces where the state law is absent. The case of refugee camps—often discussed as sites of legal limbo and state of exception—seems to be a space of legal pluralism. However, when observing local legal practices, this pluralism is dissolved into a powerful local camp law. This characteristic type of legal order is produced by social camp-specific mechanisms, camp materiality as well as the remaking of pre-camp structures. Therefore, refugee camps should be viewed as extraterritorial spaces with a high degree of legal autonomy that enables and forces residents to create a local camp law. The findings of this study add to the literature of law and order in camps and to the debates on plural configurations in extraterritorial spaces.

Bankruptcy law, creditors' rights and dividend policy: evidence from a quasi-natural experiment

PurposeThe purpose of this paper is to examine how changes in creditors' rights affect the dividend policy behavior of corporate firms.Design/methodology/approachThe authors use the implementation of the bankruptcy and insolvency code (IBC) in India in 2016 as a quasi-natural experiment setup. Differential application of this law allows them to use the Difference in Differences approach to extract the marginal impact of change in creditors' rights on the dividend policy.FindingsThe authors show that firms responded to strengthening creditors' rights by decreasing their dividend payout. Further, the authors observe that this negative response is conditioned on firm leverage and the nature of the creditor, i.e. public or private. The firms with a greater leverage ratio and a greater proportion of private debt in the total debt in the pre-event period have shown greater response to the change in the law. Lastly, the authors show that stock markets positively respond to the observed decrease in dividends only when a corresponding decrease in the leverage accompanies such a decrease.Originality/valueThe authors contribute to the finance and law literature from several aspects. First, the authors extend this stream by bringing to light the dividend policy response of firms when they are subjected to a change in creditors' rights. Second, the authors also show how firm-level factors like financial policy and the nature of the creditor condition their response to IBC. Lastly, the authors also examine the market reaction to the dividend policy response of firms to the change in bankruptcy law.

Pauper Voices, Public Opinion and Workhouse Reform in Mid-Victorian England: Bearing Witness, by Peter Jones and Steven King

Reviewed by: Pauper Voices, Public Opinion and Workhouse Reform in Mid-Victorian England: Bearing Witness by Peter Jones and Steven King Marjorie Levine-Clark (bio) Pauper Voices, Public Opinion and Workhouse Reform in Mid-Victorian England: Bearing Witness, by Peter Jones and Steven King; pp. ix + 136. Cham, Switzerland: Palgrave Macmillan, 2020, $69.99, $54.99 ebook. Peter Jones and Steven King’s little book, Pauper Voices, Public Opinion and Workhouse Reform in Mid-Victorian England, explores demands for workhouse reform during the nineteenth century. It stands out as truly innovative in poor law literature while also engaging scholars of journalism and public opinion. The authors make three significant interventions (and several smaller ones) into poor law historiography, each introduced in the three main chapters of the book. Chapter 1 shows that historians need to reconsider the chronology and content of the resistance to deterrent workhouses. Chapter 2 introduces readers to Joseph Rowntree, an influential “amateur workhouse inspector and journalist,” “entirely neglected” in histories of the poor law (4). Most importantly, perhaps, the authors demonstrate in chapter 3 that (male) paupers inserted themselves in debates about workhouse reform. The study is deeply archival, analyzing sources from the massive MH 12 series of thousands of volumes in the National Archives in London. MH 12 has routinely been mined by historians to find correspondence between local poor law officials and central poor law authorities to tell stories of specific poor law unions. Jones and King use the collection differently. As principal members of the larger project “In Their Own Write: The Lives and Letters of the Poor 1834–c.1900,” they systematically scoured the MH 12 series to locate the letters of paupers across the volumes. (They expect to find 20,000 to 30,000 letters when the project is complete.) This broad look at the series also unearthed the prolific record of a man like Rowntree. In addition to their close archival readings, the authors employed digital searching of the online British Library Newspaper Archive to study the ways that the language relating to poor law reform changed over time. These two approaches to text prove richly rewarding in complicating our received historical narratives. Parts of this research have been introduced and published previously, most notably in the authors’ own edited volume Obligation, Entitlement and Dispute under the English Poor Laws (2015), which underscores the agency of the poor. Pulling the research together in one book, however, allows Jones and King to address more substantively continuities across the Old Poor Law and the New and when significant changes occurred, as well as to investigate more thoroughly the specifically Victorian aspects of their material and arguments. Chapter 1 tells the fascinating story of rhetorical and thematic shifts in criticisms of the workhouse from the Old Poor Law through the end of the nineteenth century. The authors convincingly show that both the idea of the deterrent workhouse and opposition to that idea existed long before the 1834 Poor Law Amendment Act. It was the New Poor Law, however, that galvanized resistance and regular attacks in the local and national press. Using the results of digital newspaper searching, the authors illustrate that a language of “abuse” and “cruelty” that followed the establishment of the work-house system changed in the second half of the century to a language of “scandal” (1). While scandal certainly encompassed distinct workhouse abuses, it more importantly came to stand for a general critique of the workhouse that came to dominate [End Page 727] the pages of newspapers. Jones and King insist that “something clearly happened in the 1860s” to shift the public discourse to emphasize the need to hold poor law officials accountable to those for whom they were responsible: the poor themselves (23). This is a persuasive new way of understanding workhouse scandal. As Jones and King note, scholars have tended to use scandal narrowly to focus on individual horrors at single workhouses. The authors’ revisioning of scandal as a broad public concern with the management of workhouses and the care of the poor transforms the story of the Victorian Poor Law in creative ways. In chapter 2 the authors add more to this story by examining the...

The Balinese Inheritance Customary Law During Modernity and Gender Equality Era (A Case Study)

The issue focuses on whether Balinese people still adhere to their inheritance customary law during modernity and the gender equality era. The research data consists of the Supreme Court decision No. 29/K/Pdt/2004 of the case as a primary legal material, together with works of literature and research articles of inheritance Bali adat law as secondary legal materials. It will analyze the data regarding substitute heirs' position qualitatively according to Bali inheritance law. The result shows that Bali's inheritance customary law uses a patrilineal system, which places men as the heir. It has existed nowadays as supported by the Plaintiffs and the judges in court decision No. 29K/Pdt/2004. Instead of applying gender equality, Balinese inheritance customary law uses the principle of the balance of life by giving a man as an heir and giving him obligation, likewise, a father who protects and takes care of women. Only if no son can the woman be represented as a substitute heir. Justice for women in Bali is still an exception condition. It is essential to consider the rights given to women because as society develops, the role of women in various aspects of life begins to emerge

Natural Privacy

Over the last century and a half, appeals to “privacy” have become common in American law. The result is a rather chaotic mix of concepts, which philosophers might be able to help bring into some kind of order. But I want to discuss one kind of privacy that isn’t discussed much in the law literature, what I call “natural privacy.” I strongly suspect that unlike cricket or checkers or bridge with respect to our concept of game (Wittgenstein’s example) there is something very basic about natural privacy that can illuminate, at least to a certain extent, part of the web of concepts for which we have come to use the term “privacy.” The basis of this hunch is that two aspects of natural privacy, imagination and contemplation, seem to be a very important part of what it is to be a human being. The privacy we seek by building houses, fences and private offices seems to bear a close kinship with the kind of privacy with which nature endows us. And so does the sort of privacy we seek to provide, often in vain, for things we do with the help of modern technology, from the printing press to the internet.

Criminal and military-criminal legislation in the creative heritage of P.S. Romashkin

Pyotr Semyonovich Romashkin (1915 - 1975) – Corresponding Member of the USSR Academy of Sciences, Doctor of Law, Professor; in 1958 - 1964 he headed the Institute of State and Law of the USSR Academy of Sciences, after 1964 he headed the Sector of General Problems of Criminal Law of the Institute. Author of a number of works on Criminal and International Criminal Law. The article analyzes his monograph “The main principles of the criminal and military criminal legislation of Peter the Great” (Moscow, 1947) - the first and, unfortunately, the last in the Soviet and post-Soviet criminal law literature study of the legislation of the Peter the Great era. The general issues of the Criminal and Military Criminal Law of Peter the Great are considered, its difference from both the previous criminal legislation and the Cathedral Code of 1649, which operated along with the military Articles of 1715. The author’s views on the crime and punishment reflected in the imperial acts, his assessment of the scope of these Articles, types of punishments and, in particular, the death penalty are investigated. P.S. Romashkin expressed his own point of view on a number of issues, therefore, the work of pre-revolutionary criminologists on both Criminal and Military Criminal Law is widely used in the article.

Navigating Gendered Pathways: Uncovering Gendered Barriers for Women Migrants in Europe

This ethnographic study delves into the challenges women who migrate from developing countries to Europe face. By adopting a feminist and postcolonial lens, it aims to explore the intersection of gender and migration, shedding light on the experiences of migrant women that have received limited attention within existing migration law literature. The study examines how gender influences various forms of prejudice, marginalization, and constrained economic potential for these women. Additionally, it presents recommendations to improve the conditions for migrant women in Europe, including enhancing access to resources and support services, expanding educational and employment opportunities, and advocating for the recognition of their rights as equal citizens. By addressing these issues, this research strives to contribute to a more inclusive and equitable society for migrant women in Europe.

The Application of Law as a Key to Understanding Judicial Independence

Judges across China recently declined to apply a law that the National People’s Congress had newly brought into effect. In this article, I describe this startling finding and explore the significance of it. I conclude that it represents an exercise of judicial independence. Using a thickly descriptive approach that focuses on textual analysis and institutional context, I demonstrate that judges in China have no legal duty to apply law and that it is professionally risky for them to apply law; that judges there operate within a professional culture that encourages restraint; and that the court system has developed a strong set of internal rules that encourage reference to judge-made rules rather than to external rules such as those enacted by legislative or executive bodies. I further argue that the topic of judicial independence is important not just for countries outside the United States, but for the United States as well, and that a framework developed from a broadly comparative perspective is the best approach for understanding judicial independence in China, and, likewise, in the United States. Understanding judicial independence in China is important for myriad reasons. It is a gauge of the robustness of the rule of law in China. It is an important proving-ground for judicial independence as a universal phenomenon. It adds perspectives from China to the comparative law literature on judges. It is a bell-weather of the kind of decentralization of authority that famously marks China’s post-Mao government. There is no question that the courts of China were enlisted to play a role in the larger governmental initiatives of the past century. Its courts garnered respect for the People’s Republic of China’s legal system, which in turn helped China participate as an equal in the international legal order, as well as the international economic system. With judicial independence, there is no escaping the fact that to understand it is to measure it. This is because it would be false and misleading to believe that either you have it or you don’t. Each country’s, each county’s, each judge’s independence is affected by a complex of circumstances around it that vary over time. Some of these circumstances are institutional, some are cultural, and some are the products of chance and human agency. Care is needed when framing the measuring project. If we choose to view the degree of judicial independence as arraying itself along a spectrum, then we need

On Who Should Pay When Orbital Debris “Trickles-Down” in a Tragedy of the Low Earth Orbit Commons

In March 2023, NASA released the most rigorous and wide-reaching orbital debris analysis in the space law literature that provides a cost-benefit analysis of removing orbital debris from low Earth orbit (LEO), a region of the Earth’s environment with no environmental regulation. NASA contextualized the motivation in releasing this report as rooted in the exponential growth of the commercial satellite industry, noting that “the number of tracked and untracked debris in LEO is projected to grow . . . even if no new satellites are launched into space, yet launch traffic is likely to increase in the coming decade compared to recent history.” Similarly, in a May 2023 Congressional Budget Office (CBO) report, the CBO argued that the “number of satellites operating in LEO has increased significantly in recent years, driven in large part by commercial [satellite] constellations,” which are networks of identical satellites whose orbits and positions are coordinated to accomplish a given mission, such as providing global broadband internet. Underscoring the dangers of launching thousands of satellites into a finite orbital space with no environmental regulation, SpaceX, who operates the world’s largest constellation, Starlink, reported that from December 2022 to May 2023, Starlink had to perform 25,299 collision avoidance maneuvers in LEO. This number of collision avoidance maneuvers is double the number of maneuvers reported by SpaceX during the previous six-month period, which is alarming to industry experts. Concerning the risks that satellite constellations pose to the sustainability of LEO, experts note that the global space market grew by 8% to $424 billion in 2022 and is expected to be valued at more than $737 billion by 2030, which is a market that will certainly be impacted if LEO is enshrouded in an impenetrable maelstrom of orbital debris moving at speeds seven times faster than a bullet. Cross-referencing the most current orbital debris numbers from the European Space Agency with NASA’s estimated costs of $300 per debris removed with ground-based lasers, and $6,000 per debris removed with space-based lasers, the total estimated cost to remove the 1,036,500 trackable pieces of orbital debris from LEO is from $310 million to $6.2 billion. On the other hand, the cost to remove the estimated 130 million pieces of currently untraceable orbital debris from LEO is from $39 to $780 billion, all of which is a sizeable liability for the United States (U.S.) government to allocate to the U.S. taxpayer. Indeed, under both the Outer Space Treaty and the Proposed ORBITS Act of 2023, which is a bipartisan bill recently unanimously passed by the U.S. Senate, the U.S. taxpayer will be left with footing the bill for remediating the debris left behind by U.S.-authorized commercial satellite operators. Describing the LEO environment as a classical “tragedy of the commons” and drawing from studies conducted by NASA, the Government Accountability Office, the CBO, United Nations, and others, the purpose of this article is to tackle the question of who should pay when orbital debris “trickles down” in a manner that compromises Earth’s satellite-reliant infrastructure and otherwise causes damage to Earth’s environment, persons, and property. This article then recommends specific language to amend Title III of the Communications Act of 1934, which created and charged the Federal Communications Commission (FCC) with regulating commercial satellite systems, to establish a satellite constellation “orbital use fee” (OUF), which the FCC will levy as a requirement for receiving a license to operate in LEO. This OUF will then fund orbital debris remediation projects, related research, and remediation of the environmental impacts of satellite constellations. Given that the U.S. leads the world in the total number of satellites in space per country, and SpaceX will own more satellites than each country in the world combined once it fully deploys Starlink, this article concludes by arguing that the U.S. is uniquely positioned to engage its allies in forging the foundation of customary international space law. First, through passing into law the types of model legislation provided in this article, which will then form the basis of bilateral and multilateral treaty negotiations with both current and potential space-faring nations. This legislative and diplomatic strategy will help to operationalize the 1967 Outer Space Treaty (OST) proclamation establishing space as the “province of all mankind,” and promote its peaceful use and exploration for the “benefit and in the interests of all countries.”

Value Incommensurability in Natural Law Ethics

The foundation of natural law ethics is a set of basic human goods, such as life and health, knowledge, work and play, appreciation of beauty, friendship, and religion. A disputed question among natural law theorists is whether the basic goods are “incommensurable.” But there is widespread ambiguity in the natural law literature about what incommensurability means, which makes it unclear how this disagreement should be understood and resolved. First, I clear up this ambiguity by distinguishing between incommensurability and incomparability. I show that proponents of New Natural Law Theory hold that basic goods are both incommensurable and incomparable, whereas proponents of Classical Natural Law Theory hold that basic goods are incommensurable but comparable. Second, I critique the leading New Natural Law arguments for the incomparability of basic goods. Throughout the article, I explain why value incommensurability is an essential feature of natural law ethics but value incomparability is not.

New Literature in European Criminal Law

New Literature in European Criminal Law

Human rıghts factor ın the regulatıon of relatıonshıps ın the fıeld of ınformatıon

The article broadly analyzes human rights factor in the regulation of relations in the field of information on the basis of the diversity of opinions existing in the legal literature and norms of international law. Today the information network that governs the world also justifies the need to regulate relationships in this area, where human rights are one of the main aspects. Even other problems set by the international community ultimately serve human rights. For example, ensuring international peace and security ultimately leads to human security. In general, as well as in other areas, the special consideration of the human rights factor in the regulation of relationships in the field of information can be justified by a number of factors. The analysis of the peculiarities of the regulation of relationships is a significant problem in each area. Nowadays, the information network that governs the world also justifies the need to regulate relations in this area, where human rights are one of the main aspects. Finally, the article concludes that when analyzing the general characteristics of the interaction between the regulation of relations in the field of information and the human rights factor, it should be proceeded from the close interaction of these concepts: information objects, information relations, legal regulation, human rights. Keywords: information relations, protection of information, information objects, information systems, legal regulation, information law.

Law and gendered labour market segmentation

AbstractThis article captures the shared understanding in the literature of labour law's interaction with gender, distinguishing between law's different functions – constituting labour market institutions, sustaining them, addressing unwarranted outcomes and transforming the institutions. Constituted, in part, by law, the standard employment relationship and the institutions of formal employment have segmenting gendered effects. While legal norms designed to correct these effects are important, they also sustain them. The authors argue for a transformative alternative that would follow two general principles in designing new labour standards, namely, universalization of scope and adaptive content in the interests of differently situated women and men.

Differences in a Minor Archive: Feminist Activists and Scholars on Cohabitation

Abstract In an act of minor comparativism, this Article studies feminist writings on unmarried cohabitation from Canada’s jurisdictions of the common law and civil law. It examines activist texts and legal scholarship for and against regulating cohabitants. Reading the English-language literature from the common law provinces and the French-language literature from Quebec, it reports differences in substance, in emphasis, and in what is common sense. Differing approaches to ideas of freedom, autonomy, and choice run throughout. The Quebec literature shows disagreement between activists and scholars. Over time, that literature has moved towards the view in the common law literature. Lessons for comparatists relate to varieties of difference, the definition of legal sources, the asymmetrical role that legal traditions play in majority and minority contexts, and the limits of law in explaining differences. Given the unreliability of initial observations of difference and sameness, comparatists should read a broad range of sources with care and humility.

Principles and Rules for Determining the Tax Capacity of Entrepreneurs in Income Taxes

The purpose of this paper is a multifaceted theoretical and legal analysis of the issue of determining the tax capacity of entrepreneurs in income taxes so as to be able to assess the adequacy of the rules in this area for the proper implementation of this concept. The research hypothesis assumes that these rules currently in force, to a large extent, do not ensure proper implementation of the concept of tax capacity, especially in the conditions of the digitalized and globalized economy, but also in times of progressive development of instruments to counteract not only tax evasion but also tax avoidance. Therefore, it is necessary to change them in many aspects. The research was carried out using a dogmatic and comparative legal method, taking into account in particular the provisions of domestic, foreign and EU laws, the body of domestic and foreign tax law literature, court rulings and proposals for new tax and legal solutions put forward on the EU and international forum. The analysis took into account the essence of the tax capacity concept and closely related tax principles, as well as the functions of taxes, both in the national and international context. The results of the research is the formulation of some conclusions as to the desirable guidelines for determining the rules for measuring the tax capacity of entrepreneurs in income taxes, which should be related to the fundamental concept of tax capacity and the principles of equity and neutrality of taxation. Currently, these principles are violated in many national, as well as international aspects, i.a. by deviating from the criteria of income as an indicator of tax capacity. In this context a very important distinction should be made between situations where the abandoning of the determination of income of entrepreneurs is justified by the pursuit of a fair distribution of the tax burden (as, e.g., in case of so-called digital tax) and situations when it results from the desire to achieve certain non-fiscal goals. In such a case, any variation in those rules must be assessed on a case-by-case basis as to whether it is justified. On the other hand, in the former case, even temporarily – especially in the international aspect – until international solutions are worked out, it may even be indispensable to differentiate the rules for determining the tax capacity of entrepreneurs (e.g. abandoning the criterion of income in favor of revenue in digital tax) precisely in order to ensure fair and neutral taxation. In this context, it is worth noting that some of the problems underlying these different approaches may be solved by a comprehensive reform of the rules for determining the tax capacity of entrepreneurs, to be developed both internationally within the OECD and in the EU within BEFIT. It should also not be underestimated that in these projects the fundamental categories and concepts are those of balance sheet law, including in particular the proposed adoption of the concept of adjusted financial result for the purposes of determining the tax result. Taking into account this issue and also in a view of the increasing development of general tax law norms aimed at minimizing the phenomena of tax avoidance and optimization, it seems worth considering an increasing possibility that the tax capacity of entrepreneurs should be determined by its natural measure, i.e. the financial result of their business activity.

Medical Responsibility for Victims of Medical Malpractice Crimes

The responsibility of the medical world to victims of criminal acts of medical malpractice is that the responsibility for the practice is an error of omission or negligence when determining the execution that results in injury or death, besides that there are no mistakes made by wrongful considerations for which the responsibility is asked. From that explanation, the formulation of the problem: the factors that cause doctors to malpractice, the regulation of medical malpractice according to Indonesian criminal law, what kind of responsibility is carried out by a medical person for malpractice according to health law, the method used is normative juridical, namely by reviewing books and also health law literature, sources of data obtained are primary and secondary legal materials consisting of the Criminal Code, Health Act and secondary legal materials consisting of books, literature and journals. The data collection technique is carried out by how to review and review legal books related to health law. The results of this study are expected that a doctor is always careful in carrying out a medical practice so that malpractice does not occur in addition to the need for a patient to understand and also consult his illness so that a doctor understand understand the illness he suffers, for the law

Goose-stepping? The concept of the Hungarian public administration contract from a private law point of view

The author addresses questions raised in the professional literature of public law (e.g.: the applicability of the Hungarian Civil Code to public law contracts), alongside the contradictions (e.g.: there isn’t a unified set of denotations and categories) and problems included therein, and the one-sidedness thereof (the disregarding of the respective works of private law). We analyze the selected material by concisely explaining the relation between public law and private law in Hungary. The author pays special attention to the Hungarian public law definitions as well as the contract-types with their characteristics, and finally, conclusions are drawn, and compatible perspectives are proposed.

Incapacitated person as an employee. Part 2

The issue of establishing an employment relationship by a completely incapacitated person has been one of the most controversial in the Polish labour law literature for years. Despite the ratification in 2012 of the UN Convention on the Rights of Persons with Disabilities (hereinafter: the Convention), many authors up till now take the position that total incapacitation deprives a person of the so-called working capacity, and thus prevents such a person from concluding an employment contract, or results in the termination of a binding employment relationship. This article shows that such a position cannot be approved, as it leads to an unauthorized restriction of the constitutional rights of completely incapacitated persons and totally contradicts the prohibition of discrimination against persons with disabilities. The article in question shows the incorrectness of this position, both in relation to the existing employment relationship of the incapacitated person and to taking up new employment. The paper analyses also an impact of total and partial incapacitation on the possibility of terminating the employment contract as well as the form of its conclusion.

The UN voluntary compact and peacekeeping abuse: assessing a soft law solution for sexual exploitation and abuse

ABSTRACT In 2017, to address the increasingly visible and prevalent occurrence of peacekeeper sexual exploitation and abuse (SEA) of civilians under their protection, the UN Secretary-General created a Voluntary Compact on state behaviour. As of 2020, 103 states signed the agreement. Building on the robust literatures of human rights law, sexual abuse, and conflict, I examine whether signing the Voluntary Compact has any relationship with the levels of reported abuse, punishing accused SEA perpetrators, and funding victim relief efforts. Through quantitative analysis of annual reports of reports of SEA and punishment actions from the UN Conduct in Field Missions unit 2007–2019, I find that Troop Contributing Countries that signed were more likely to issue national-level punishments in cases of severe abuse and to contribute to victim funding. However, there is not a clear finding of any reduction of reported abuse following signature. I conclude by discussing the Voluntary Compact as a mixed-success story for soft international law so far. Given its lack of teeth, this finding is important as the UN and other international organisations continue to prevent and punish peacekeeper SEA and use nonbinding international law.