Legal Advantage Research Articles

К вопросу о сущности юридического приоритета

The author makes one of the first attempts to determine the essence of the phenomenon of “legal priority” not only from the perspective of individual forms of its manifestation, but also through the prism of the philosophy of law, linguistic perception of this phenomenon, as well as the doctrinal positions and normative implementation that exist about it. The modern political and legal concept of objectification of legal priority in public relations is analyzed, on the basis of which it is concluded that it is positioned in two projections: as a preference, i. e. the most desirable regulatory option for the state and society, as well as a legal advantage, i. e. a specific model for improving the legal status of the subject. It is proved that legal priority acts as a means of differentiation and hierarchical construction of various elements of the legal system. The author substantiates the significance of the values that are positioned by the author as a formal legal and moral-ethical criterion for establishing legal priority in legal regulation. The conclusion is made about the need for a full-fledged, general theoretical study of legal priority, the formation of its doctrinal concept.

Legal Development and the Legal Advantage of Relational Embeddedness

Legal Development and the Legal Advantage of Relational Embeddedness

Restorative justice-based criminal case resolution in Salatiga, Indonesia: Islamic law perspective and legal objectives

Restorative justice is a pattern of dispute resolution which emphasizes the responsibility of the perpetrator for the consequences of his actions while at the same time paying attention to the position of the victim. This is not simply about punishing the offender; it is about obtaining justice through discussion outside of the criminal justice system to ensure the situation can be returned to its prior state. Islamic law offers a concept of restorative justice called islah, which is a technique to resolve conflicts between parties by forgiving one another. Salatiga City, the most tolerant city in Indonesia, is where this study is being conducted. The idea of restorative justice is used to resolve disputes through the role of a lurah (head of neighborhood), who is responsible for upholding communal order. It is intriguing to investigate whether the reality of restorative justice in Salatiga City can achieve the three main objectives of the law as outlined by Gustav Radburch: justice, benefit, and legal certainty. This study employs a qualitative methodology and a socio-legal research design. Interviews with the offenders, victims, and the lurah who served as the government's mediator resulted in the gathering of data. The findings of this study demonstrate that Salatiga City's restorative justice method to conflict settlement has achieved the goals of justice and legal advantage and can even foster good will among the parties. The absence of lurah's legal standing in the resolution of this issue, however, does not satisfy the requirement of legal clarity. For Salatiga City residents, a legal foundation is required for restorative justice-based legal dispute settlement

Нравственные основы привилегий и иммунитетов в уголовном судопроизводстве России

The article considers the principle of equality of all before the law and the court. The article analyzes the exceptions allowed by the Constitution of the Russian Federation and the Criminal Procedure Code of the Russian Federation from the principle of equality in the form of criminal procedural immunities. The immunities established by law are examined from the position of compliance with the moral foundations of the criminal process. Despite the fact that the measure of morality in the question of compliance with criminal procedural immunities granted to certain categories of persons is the interrelated principles of justice and equality. The concept of formal equality is studied from the position of the libertarian-legal theory of law, which allows us to conclude that inequality can be either fair or not. As a fair inequality, legal advantages are highlighted in the form of benefits provided by a person to increase the level of legal capacity sufficient for the realization of general legal personality. Unfair exceptions to the principle of equality are privileges granted to individuals or categories of persons. Criminal procedural immunity is examined from the point of view of ensuring equality of rights of the parties in criminal proceedings and is considered as a legal advantage over the prosecutor, due to the need to ensure the impartial activities of the subject possessing it. Based on the analysis of the essence of criminal procedural immunity, it is concluded that immunity is not a privilege, therefore, the legal advantages provided to them correspond to the moral foundations of the criminal process.

The Role of Legal Advantages in the Implementation of Law Enforcement Activities of the State and Prevention of Illegal Behavior

Purpose. The purpose of the article is to analyze the role of legal advantages in the implementation of law enforcement activities of the state and prevention of illegal behavior. Methodology. The research methodology is represented by a set of philosophical and general scientific methods, including: terminological, logical-semantic, functional, system-structural, formal-legal, comparative-legal. Results. More flexible phenomena should be used to motivate an enterprising person in the conditions of European integration. A typical example is the legal advantage. It is established that the consolidation of advantages as a legal means of law enforcement policy of the state provides: guarantees of a differentiated approach in prosecuting various entities through the implementation of their special legal status (advantages in the form of immunity); conducting the most effective state financial and economic, social and fiscal policy, stimulating compliance with financial discipline (benefit); permit regime by creating conditions for maximum assistance, which contributes to the achievement of the results of state, official and public activities of the subjects of relations (privilege). Scientific novelty. In the course of the research it was established that theoretical and legal understanding of legal advantages (immunities, benefits, privileges) in the context of law enforcement activity of the state enriches knowledge about these phenomena, clarifies the categorical apparatus, reveals new facets of conflict, including other legal phenomena. Such research is due to practical goals and objectives. This is due to the fact that the existence and legislative consolidation of legal advantages, their practical implementation and application of law are often due to the implementation of law enforcement policy. Practical significance. The results of the research can be used in legislation and lawenforcement activities in the implementation of law enforcement activities of the state and prevention of illegal behavior.

Preemptive right as a component of the special status of civil servants

The article highlights the nature of such an extraordinary and complex phenomenon as a preemptive right. It is noted that the preemptive right is a special kind of legal advantage. The specificity of the preemptive right, its correlation with the subjective rights of participants in legal relations are analyzed in detail. It is emphasized that the preemptive right is an integral component of the special legal status of civil servants.

‘Performing public piety:’ infanticide and reproductive agency in Reformation Spain

ABSTRACT This article focuses on infanticide prosecution in sixteenth-century Spain, and the judicial fate of women suspected of violating both criminal law and Christian precepts in the era of Tridentine reform. Through court records from the Kingdom of Navarre (annexed by the Castilian crown in 1515), the author explores how women on trial for the suspicious death of their infants co-opted language of Christian maternity and Catholic sacramental morality to craft their defense against prosecutorial allegations of murder and sacrilege. The article argues that accused infanticidal mothers used performative public piety and doctrinal ambiguity surrounding the post-mortem fate of the unbaptized to their legal advantage, not only to plead their innocence but also to assert their reproductive agency before the early modern Spanish court.

Категория «привилегия»: доктрина, законодательство, практика

Introduction. The article is devoted to the general theoretic analysis of legal category “privilege”. The author proposes and argues the hypothesis of the perception of privilege as a form of legal advantage different from such types of this system as courtesy and immunity. The work presents essential and substantial consideration of legal privilege from the point of view of the doctrine of law, historical and modern legislation, as well as law enforcement practice. The aim is to form a view of privilege as a form of improving the legal situation of individual entities with special legal status; to propose its definition. Methodology. Historical learning style, empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic. Specific scientific methods: technical approach, method of interpretation of legal norms. Results. Analysis of doctrinal sources of Russian and foreign law, historical monuments of jurisprudence, modern normative legal acts and law enforcement practice has shown thatthe category of privilege is often mixed with other legal means, having an incentive or rewarding character. On the basis of the establishment of similarity and distinction elements between privilege, courtesy and immunity, aspects of their interaction and existing contradictions, the author proves the independent categorical nature of privilege, identifies its specific features, which differ from related legal phenomena. Conclusion. In both legal science (theoretical and sectoral) and the system of legislation, it is necessary to clearly distinguish the understanding and application of the legal category “privilege” by means of: establishing legal definition, unification and specifying the provisions of normative acts using backing, incentive and rewarding instrumentarium; achieving the justifiable use of evaluation categories giving the right to the privilege. The actions taken should contribute not only to improving the efficiency of public relations regulation due to the legal advantages system, but also to reducing the corruption risks associated with the granting of such “on top of ” rights, diminishing administrative barriers on receipt and realization.

Rule of Law and Rules‐Lawyering: Legal Corruption and ‘Reprivatization Business’ in Warsaw

AbstractDelving into the nexus between the state and informality, this paper discusses the informality of the legal and judicial systems. Produced by structurally powerful actors, this kind of informality is not so much legitimized by the law, but concealed within the very process of legitimization. To capture how legal engineering welds formalized laws with informal translations, I look at judicial outcomes that, while formally legal, are socially delegitimized and perceived as legal corruption. After analysing the contested judicial outcomes of Warsaw's ‘reprivatization’ process (property restitution), I define the mechanism of legal corruption as rules‐lawyering, by which I mean an attempt to gain legal advantage by obsessively sticking to the written laws, while deliberately desecrating its spirit. I describe three of its mechanisms: appropriation, redefinition and fraud laundering. Finally, in my preliminary vivisection of the recent and ongoing process of delegalizing the legal corruption that has been part of the reprivatization process, all the allied concepts of this forum come together to demonstrate the essential inseparability of informality and state.

Regularities and shortcomings of technical and legal fortification of legal advantages of modern Russian legislation

««Вестник Санкт-Петербургского университета. Право» — международный научно-теоретический рецензируемый журнал, публикующий материалы в следующих рубриках: Публичное и частное право: прикладные исследования Криминология Криминалистика Судебная экспертиза Исследования права с позиций социальных и гуманитарных (неюридических) наук Правовая жизнь: научно-практические заключения, комментарии и обзоры Сравнительное право Зарубежное право

National Law or EU Law

Abstract The article examines cases of conflict between the national law of the EU Member States and European Union Law. There is an analysis of the legal advantage of EU law over national law or vice versa. Conclusions have been drawn that the national law should maintain its advantage when the reason for it is contained in the Constitution of the respective state.

AN ANALYSIS OF THE METHOD OF DISPUTE SETTLEMENT IN ENERGY CHARTER TREATY COMPARED WITH WORLD TRADE ORGANIZATION

The present study by applying an analytical-descriptive method has analyzed the method of dispute settlement in energy charter treaty compared with world trade organization. The research findings show that the trial process of dispute settlement in energy charter treaty which is derived from GAT and World Trade Organization dispute settlement the process is shorter and faster because of the lack of revision foundation and mostly follow a diplomatic procedure (rather than legal solutions). The other legal advantage of the energy charter treaty is the support of foreign investor that in contrast to the supportive rules of the World Trade Organization, the energy charter treaty allows freedom of action to the host countries in terms of selecting the investor and arranging the intended framework and conditions and after the investment applythe ruling principles of the World Trade Organization such as the most-favored nation principle of national treatment table etc. The system of dispute settlement in the energy charter treaty is mainly on the basis of arbitration and the players of the energy subdivisions are mainly private foundations. In contrast to the World Trade Organization whose judicial system is exclusively assigned to verify the state or regional organizations’ cases the dispute settlement system of the energy charter treaty by the generalization of its dispute settlement rules (that are inspired from the World Trade Organization) verify the cases about investor and the host state.

International Law and the Consolidation of Peace Following Territorial Changes

Why are some changes to the territorial status quo sustained over time while others are subject to new challenges and ongoing dispute? This article examines variation in the sustainability of territorial change, arguing that under certain conditions, international law facilitates the consolidation of the new territorial order. Specifically, when international law supports the new status quo, it helps solve enforcement problems associated with international cooperation by generating precedent-based costs for issuing a new challenge. If a territorial loser has other ongoing territorial disputes in which it enjoys a legal advantage, it will avoid challenging its current loss out of fear that doing so would establish a precedent for nonadherence to the law in territorial settlement and would therefore jeopardize its bargaining strength in other ongoing disputes. We test this argument on an original dataset of territorial changes and settlements during territorial disputes, 1945–2009. Empirical results strongl...

The Gregorianus and Hermogenianus assembled and shattered

The Gregorian and Hermogenian Codes do not survive and so have to be imagined from their remains recycled into other late antique legal works, in particular the Justinian Code. Additional illumination may also be provided if the recent identification of some fragments (Fragmenta Londiniensia Anteiustiniana) as coming from the Gregorian Code is correct. From the various sources, it is clear that the Hermogenian Code consisted almost solely of private rescripts issued by Diocletian and his colleagues in the two years 293 and 294, while the Gregorian Code, consisting mainly but not only of private rescripts, covered the period from Hadrian up to some point in the 290s. Both were arranged thematically under titles (the Gregorianus also in Books), further developing principles of organization from earlier juristic collections, that had brought together both praetorian and non-praetorian legal topics. The two codes were also probably the first legal works to appear in the new “codex” rather than roll format. While the Hermogenian Code was produced by a jurist prominent at Diocletian’s court from texts he himself wrote in the emperors’ names, it is not certain that this was so for the Gregorianus, of whose compiler we know nothing. Nor are the publication dates and relative sequence of the two codes clear, although both must have appeared by c.300. There is no evidence that either existed in more than one formal edition. Whether or not sponsored by Diocletian, the codes mark two important features of Diocletian’s reign. First, they disseminated more widely than ever before a huge range of imperial legal rulings in a coherent and ordered way, serving the needs of not only the state (officials and governors) and professionals (advocates, law-teachers), but also of a citizen population, nominally Roman, but still unfamiliar with Roman legal norms, and eager for any legal advantage. Secondly, the codes mark the supersession of earlier authoritative forms of law-making or exposition (lex, senatus consultum, juristic writing) and demonstrate the emperor’s dominance in the creation and interpretation of normative legal texts.

A WHIPPER WHIPPED: THE SEDITION OF WILLIAM PRYNNE

ABSTRACT‘A whipper whipped’ is a thoroughly new account of the 1634 Star Chamber case against William Prynne for publishing the seditious work Histrio-mastix. It is based upon a hitherto unused manuscript account that provides previously undisclosed information about the proceedings and especially about the intentions of the prosecution. This case is one of the most celebrated events of the 1630s, often viewed as the watershed event in the history of Caroline censorship. It has also become a prime example of Archbishop William Laud's attack against puritan conformists. This article argues that Laud played little role in the case; that the issue before Star Chamber was primarily the charge of sedition; and that Prynne received every possible legal advantage during his hearing. Through a careful reconstruction of the legal proceedings, the case is seen in an entirely new light. Though historians and literary critics have accepted Prynne's self-serving accounts of his prosecution, this fuller record demonstrates their inadequacy.

Bringing Law to the Table: Legal Claims, Focal Points, and the Settlement of Territorial Disputes Since 1945

In this article, we argue that international law can help state leaders reach a settlement in territorial disputes by suggesting a focal point for negotiations. International law is more likely to serve as a focal point when the legal principles relevant to the dispute are clear and well established and when one of the states in the dispute has a stronger legal claim to disputed territory. When these two conditions are present, we expect the state with a legal advantage to push for and receive favorable terms of settlement. In our analysis of all negotiated settlements in territorial disputes from 1945 to 2000, we find strong support for the importance of international law in influencing the terms of settlements. States with a strong legal advantage are more likely to secure favorable terms, whereas states lacking a strong legal claim are more likely to receive unfavorable terms.

Law and the Use of Force in World Politics: The Varied Effects of Law on the Exercise of Military Power in Territorial Disputes

In this paper, we investigate how international law shapes leaders' decisions regarding the use of force in the context of territorial disputes. We argue that if the legal principles relevant to the dispute are capable of suggesting a focal point, international law will have a powerful role to play in informing leader behavior. Specifically, if a focal point exists, the state that it favors will avoid using force and prefer negotiations when considering an initial challenge to the status quo. However, we expect focal points to have the opposite effect once states are involved in a militarized dispute. Under these circumstances, the state with a legal advantage will be more likely to escalate the level of military force. Using a series of statistical tests, we find strong support for our theoretical argument.

Abuse of Confidentiality and Fabricated Controversy: Two Proposals

Public faith in the legal profession is not merely low but is declining at a disturbing rate. During the past decade the percentage of people willing to rate lawyers' honesty and standards as or very high has dropped from 22% to 13% (according to Gallup). This is an average decline of nearly 1% per year. While polls may not be perfect reflections of public sentiment, it seems safe to say that, in terms of our reputation for ethics and honesty, the past 10 years have not exactly been a decade of progress. If the Canons were right, it may be peculiarly essential to the long-term stability of our American form of government that the public can trust the lawyers who steward its laws and its justice. As long as people do not trust the integrity of the lawyers who administer the legal system, they will never find it easy to trust the system as a whole, and the distrust of lawyers runs deep. The documented public cynicism about lawyer ethics and trustworthiness is, moreover, a valuable measure of how well the profession is performing its responsibilities of self-regulation. It is doubtful that our poor professional reputation for honesty and standards could be so persistent without some genuine foundation in the ways lawyers behave. Ironically, however, most lawyers seem rather scrupulous to observe what they believe to be the profession's standards. Accordingly, it may well be that there is something wrong in the standards themselves, soomething which leads lawyers to act in ways the public finds repugnant. This article considers the hypothesis that the public's negative view of lawyers is tied directly to two related forms of advocacy, both seemingly rooted in the Model Rules of Professional Conduct. They are designated here, respectively, as (1) fabrication of controversy, or pretending disagreement in order to gain some non-deserved legal advantage, and (2) abuse of confidentiality, the deliberate effort to foster false inferences through partial disclosures and half-truths. Both of these lawyering techniques are stoutly defended (albeit under different names) by many in the bar, and are perhaps even regarded as crucial aspects of the adversary system. At the same, however, neither would likely be recognized as genuinely or ethical as those conceptions are generally understood in ordinary, non-lawyer contexts. Worse than that, both are readily perceivable as detracting from the legal system's ability to achieve the gold standard of justice and of the rule of law, namely, the substance of the law applied to the events that actually occur. Nonetheless, both of these forms of advocacy behavior are reinforced and propagated by a fair reading of the current Model Rules. The bulk of the article is framed as a discussion of two proposals that would modify the Model Rules to eliminate these marginally honest practices?first, by declaring fabricated controversy to be out of bounds and, secondly, by expressly forbidding abuse of confidentiality in an effort to undercut the law's search for truth.

When Code Isn't Law

The prominent effects of computer have made it difficult to ignore the fact that can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) code is But the idea remains extremely vague. Most problematically, none of these understandings of and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the vast majority of laws remains unaffected. This Article proposes a new and concrete way to understand the relationship between and compliance with law. I propose to study the design of as an aspect of interest group behavior as simply one of several mechanisms that groups use to minimize legal costs. Code design, in other words, can be usefully studied as an alternative to lobbying campaigns, tax avoidance, or any other approach that a group might use to seek legal advantage. The important case of peer-to-peer (P2P) filesharing, explored in depth in this Article, illustrates the possibility of using design as an alternative mechanism of interest group behavior. The approach aims to separate two different aspects of code's relationship with law. The first is Lessig's concept of a regulatory mechanism that computer can substitute for law or other forms of regulation. The second aspect is as an anti-regulatory mechanism tool to minimize the costs of law that certain groups will use to their advantage.

When Code Isn't Law

The prominent effects of computer have made it difficult to ignore the fact that can be used to produce regulatory effects similar to laws. Hence, the popularity of the idea that (for computer users at least) code is But the idea remains extremely vague. Most problematically, none of these understandings of and law explains the central issue of compliance. Specifically, they do not explain the shifting patterns of legal compliance in the 2000s. Explosions of non-compliance in areas such as copyright, pornography, financial fraud, and prescription drugs fuel the sense of a legal breakdown, yet the vast majority of laws remains unaffected. This Article proposes a new and concrete way to understand the relationship between and compliance with law. I propose to study the design of as an aspect of interest group behavior as simply one of several mechanisms that groups use to minimize legal costs. Code design, in other words, can be usefully studied as an alternative to lobbying campaigns, tax avoidance, or any other approach that a group might use to seek legal advantage. The important case of peer-to-peer (P2P) filesharing, explored in depth in this Article, illustrates the possibility of using design as an alternative mechanism of interest group behavior. The approach aims to separate two different aspects of code's relationship with law. The first is Lessig's concept of a regulatory mechanism that computer can substitute for law or other forms of regulation. The second aspect is as an anti-regulatory mechanism tool to minimize the costs of law that certain groups will use to their advantage.