Legal Compromise Research Articles

Социолого-правовые концепции компромисса

Between modern humanities, as is known, there is a close relationship. Often the same phenomenon is simultaneously in the field of view of representatives of several fields of knowledge. In this regard, in some cases, legal scholars, before considering specific state-legal problems, it makes sense to turn to the achievements of philosophy, political science, economic theory and other sciences. The information gleaned from them can become an important part of the methodological basis for conducting serious and in-depth legal research in the future. Based on this, the author of this article made an attempt to refer to the provisions of the sociology of law, reflecting the nature of compromise as a complex social phenomenon. With their help, he tried to clarify the reasons and trace the process of its penetration into the legal sphere. The material presented in the article seems to be able to expand the ideas of modern legal scholars about the nature of legal compromise and act as a foundation for its further study.

Compromise in early legal culture

The beginning of a truly philosophical understanding of the phenomenon of compromise is found in the ancient cultural tradition. Later, the theses put forward by ancient researchers were developed in the works of medieval authors. The political and legal views of scientists of these periods laid the foundations for understanding compromise, which remain relevant to this day. This article contains an attempt to study the most significant ideas of ancient and medieval authors, reflecting the nature of compromise and its purpose in the life of society. The theoretical propositions formulated on the basis of their analysis should become an important addition to the modern concept of compromise. Its formation is one of the stages in the construction of a modern theory of legal compromise.

Legal relations in the field of legal conflict and compromise: features, content and practical significance

The relevance of a comprehensive study of the phenomena of compromise and conflict relations is due to the lack of special studies of the concept, features, content and nature of these categories, the prospects for the use of compromise relations in practice to overcome conflict situations. Analyzing the various scientific approaches to understanding conflicting relationships, we can conclude that the most common are: Conflict approach, activity approach, material approach, formal (procedural) approach. Based on existing approaches to understanding conflict relationships and their features, we will try to identify the most inherent features: first, the subject is social or material values, about which there are conflict situations; secondly, encourage the mobilization of legal relations; third, accompanied by increased emotionality of participants; fourth, determined by objective and subjective preconditions; fifth, it is both bilateral and multilateral; sixth, the confrontation of values and intentions of the participants; seventh, they may be latent or overt. These features of the manifestation of conflicting legal relations are the basis for determining their legal nature. In our opinion, the characteristic features of compromise legal relations include the following: is a prerequisite for resolving conflicting legal relations; can be directed both to a specific subject and to an indefinite number of persons; a necessary condition for the emergence, change and termination of compromise legal relations is the presence of a compromise rule; a necessary condition for a compromise legal relationship is the presence of agreement between their participants; aimed at regulating, protecting and defending the rights and freedoms of participants; compromise legal relations are a legal mechanism for regulating the consent of the subjects; Legal conflict and legal compromise are manifested in various types of legal relations, in particular in their content through forms of realization of rights. At the same time, the main types of forms of realization of rights in the presence of legal conflicts are their implementation and observance. Legal conflicts, the dynamics of which is carried out within the framework of compliance with legal norms is directly related to their use. This is due to the fact that each right of one entity corresponds to the corresponding duty of another. Such legal conflicts within the framework of the above forms of law enforcement exist in all branches of law. The most common means of compromising the right to compromise conflicts that arise when participants exercise their rights and perform their duties are: making changes and additions to the law; adoption of law enforcement decisions by specially authorized entities, first of all, competent bodies in resolving conflict situations, in particular by courts; the need to take into account foreign experience in resolving anthological conflict situations, etc. – definition of measures and forms of guarantee of the reached agreement. Thus, the structural and functional elements of a legal compromise include: the existence of a conflict situation that requires resolution; goal; the initiator of the compromise agreement; determination of the criterion of the moment when further intransigence, refusal to mutually discuss ways out of the situation leads to significant personal material and moral losses; psychological and intellectual willingness to cooperate on terms of compromise; voluntary compromise decision-making; preparation for a compromise decision and determination of the essence of the compromise agreement with discussion of the content of concessions; independence of the choice of the decision-making option by the parties; concluding a compromise agreement; creating conditions for the impossibility of evading the implementation of the compromise agreement; obtaining positive consequences as the end result of a compromise in the form of a desired interest, a positive moral and psychological state. Certain elements of compromise are interconnected, have their own logic of interaction and, in fact, constitute a specific effective regulatory mechanism, born in the practice of human life. This mechanism has a structure of a linear type that corresponds to logic: from goal-setting to the fastest achievement of the goal with the least losses - psychological, material, time, and so on. Key words: legal conflict, legal compromise, legal relations, content of legal relations, conflict situation.

Компромисс в доправовой культуре

The study of legal compromise can hardly be successful without a deep understanding of the nature of compromise as a complex social phenomenon. Her research in modern jurisprudence is carried out in a number of areas. In particular, signs, types, and functions of a compromise turned out to be in the field of view of specialists. One of the least studied aspects of this phenomenon was the history of its origin. Within the framework of the presented article, the author sets himself the task of filling this gap in legal science. He makes an attempt to trace the genesis of the compromise, to find out its causes.

Методологические предпосылки изучения правового компромисса

In modern legal science, there are a significant number of approaches to the phenomenon of legal compromise. This diversity is explained by the lack of a unified approach to the concept of “compromise” and the gaps in the researchers ideas about the system of closely related phenomena. The article attempts to study the relationship of compromise to contract, consensus, competition, accommodation, and cooperation. The formulated theses can serve as a supplement to the basics of the modern concept of legal compromise.

Правовой компромисс как средство решения транспортных проблем современных мегаполисов (на примере организации парковочного пространства)

Today, the problem of parking is very relevant for large metropolitan areas. The increase in the number of vehicles, unfortunately, is not accompanied by an increase in the number of parking lots. This article attempts to analyze the main advantages and disadvantages of the most common solutions to the problem of parking, after highlighting which the reader is invited to get acquainted with the basics of the author’s concept of «reasonable parking». It is based on the idea of legal compromise. On the basis of it, a number of the most significant principles of the organization of parking space are identified.

THE DOCTRINAL IMPACT OF SOCIAL CONTRACT CATEGORY ON THE DEVELOPMENT OF THE PHILOSOPHY OF LEGAL SCIENCES

The article researches the peculiarities of the social contract theory influence on the philosophical foundations of legal science. The author analyzes the classical doctrines of T. Hobbes, J. Locke, J.-J. Rousseau, who created the theory of social contract, the article substantiates the influence of this theory on the interpretation of certain legal principles, the function of law and the initial legal origins. It is studied the nature of the legal compromise between public and state legal principles. It is stated the scientific position that the contract as a legal attribute and negotiability as a legal property of the person are the order ontological foundations (instead of simply a civil category). T. Hobbes's theory of the social contract defends the position that the renunciation and transfer of absolute freedom and absolute "right to everything" is a transition from the individual to the general legal state of society, which makes it possible to answer questions about internal legal formation and human development as a legal entity. Locke demonstrates the concentration of legal meanings not in supernatural principles, but in man himself, since it is a person who is the source of legal potential. According to the position of J. Locke, individuals are endowed with equal freedom and as a consequence, equality in the perception of each other without any renunciation, and thus, are capable of legal compromise. Therefore J. Locke's theory of social contract allows to doctrinally substantiate key legal principles as innate integral legal attributes of human existence. The theory of social contract makes it possible to look at the nature of power, as well as communication between the sovereign and the people from a purely legal and anthropological point of view, to distinguish their logic unlike the theological approach and its principle of «given». Order as a key legal characteristic is revealed through bargaining power as the ability to obey established requirements. This theory for the first time reveals some inalienable legal meanings: the legal capacity of legal consciousness, mutual restraint, subjugation, generality.

Legal Compromise in Aspect Socialization Processes

The process of socialization associated with the development of the social nature of an individual or social group is gaining importance for modern society. The main direction of socialization within sociology is the person as the main element of society. However, given that the socialization of the individual is determined by the nature of society itself, its characteristics and needs, we can say that the process of socialization is inherent not only personal but also other spheres of society. Although we will not deny that the anthropologization of social relations brings to the fore the sociologization of the individual as the main element of social communication. In this regard, the study of the peculiarities of the process of socialization of social interaction, factors, conditions and differences that accompany socialization is becoming increasingly important. Since the process of socialization is associated with a system of information exchange between members of society, the need to reflect and consolidate various social interests, the importance of finding social compromise, it is fair to say that socialization encompasses socio-political communication, in which law plays an important role. The study of the legal aspect of socialization is the theoretical basis for increasing the social role of law, the effectiveness of its regulatory action and ensuring public order. In our opinion, important aspects of socialization of compromise are its characteristics as a means of communication, features of manifestation within social institutions of different levels and substantiation of ways to increase the effectiveness of social functions of legal compromise and means of socialization in law. Compromise at the categorical level can be considered within the three directions of research related to its relationship with the category of conflict. We are talking about organic-structural, conflict-radical and anthropological-communicative directions. The first direction of research reflects society and the forms of its organization as coherently functioning systems. Here the category of "compromise" dominates over the category of "conflict". The second direction of research is characterized by the fact that the category of "compromise" is considered as a special manifestation of the category of "conflict", the latter is dominant in the field of public relations. Regarding the third area of ​​research, the problem of compromise and conflict within this concept is considered at the level of relationships between people, whether macro (state) or micro (group of people). At the same time, compromise and conflict are studied as equivalent interacting categories of public life. A legal compromise has legal consequences, as the result of the agreement of the wills of the parties is the imposition on them of obligations to exercise mutual will. Moreover, the violation of a legal compromise is the basis for the legal liability of the parties. Legal compromise, due to its mediation by legal norms, acquires the attribute of binding and enforced measures. Characteristic of the social action of law is the reflection of its existence at different levels of social interaction, ranging from the individual, social groups, society as a whole. A legal compromise is no exception. Social institutions create an objective reality for a person, that is, it is his social world, in which the appropriate social order is established. At the same time, social institutions are both subjectively and objectively a reality. In view of this, compromise in the behavior of subjects is manifested differently depending on the level of social institution. In simple social institutions (interpersonal, intragroup), the conflict and compromise of the behavior of subjects usually depends on subjective factors that are influenced by objective reality by operating in a single space of other social institutions. In turn, in social institutions of a complex level (intergroup and state, world system) compromise is necessarily "tied" to the order objectively established in such institutions. Thus, compromises always arise between two subjects and are carried out in the corresponding interaction. At the same time, compromises at the state level, in addition to the relationship between its subjects, are necessarily characterized by a constant connection with society through the functioning of legal requirements enshrined in the relevant sources of law.

Wolność religijna jako instrument ochrony prawnej przeciwników małżeństw jednopłciowych. Zmiany w prawie stanu Missisipi po wydaniu orzeczenia w sprawie Obergefell v. Hodges

Przedmiotem rozważań zawartych w niniejszym artykule są dokonywane ostatnio w Missisipi zmiany legislacyjne, będące reakcją zwolenników tradycyjnej koncepcji małżeństwa na legalizację małżeństw pomiędzy osobami tej samej płci. Szczególna uwaga zwrócona jest na Mississippi Religious Freedom Restoration Act i Protecting Freedom of Conscience from Government Discrimination Act. Na ich kanwie przedstawiono reakcję konserwatywnych środowisk stanu Missisipi na orzeczenie Obergefell v. Hodges, jak również kontrreakcję ruchu LGBT. Przeprowadzone analizy uwidaczniają napięcie, jakie istnieje pomiędzy zasadami równości i wolności religijnej, interpretowanymi w myśl założeń przyjmowanych przez przeciwne strony sporu. Prowadzi to do konkluzji, że nie istnieją prawne możliwości rozwiązania tego konfliktu na drodze kompromisu. Zgodnie z tezą artykułu, gwarancje wolności religijnej mogą natomiast stać się instrumentem ochrony prawnej oponentów małżeństw homoseksualnych przed zarzutami o dyskryminację w sytuacjach, gdy wyznawana przez nich religia nie pozwala im na uznanie za małżeństwo związku osób tej samej płci.

К вопросу об определении пределов правового компромисса

In modern legal science, there is a tendency to classify legal compromise as a universal tool for resolving
 socially significant conflicts. The author of the article believes that it, like most other legal phenomena, has its
 advantages and disadvantages. In this regard, determining the limits of legal compromise seems to be a very
 promising area of research. The article attempts to study
 their nature and features of their influence on the content
 of the final agreement of the parties to the conflict.

Circumstances Excluding Criminality of an Act in the Light of the General Theory of Law

The paper is devoted to an actual problem of the legal theory and practice, namely: the institution of circumstances excluding criminal nature (criminality) of an act (Chapter 8 of the Russian Criminal Code). As a manifestation of criminal and legal compromise steadily strengthening its position in domestic criminal legislation, this legal phenomenon is intended to encourage citizens to commit actions that contribute to localization or minimization of threats to the interests of the individual, society and the state protected by the law. At the same time, despite seemingly clear legislative enactment, the institution of circumstances precluding the criminal nature of an act evokes hot scientific debates. Among forensic scientists there is no uniform opinion concerning the legal nature of the criminal law institution as a whole and some of the individual types of circumstances constituting the institution under consideration, in particular. The legal literature substantiates the idea of the need to expand the legislative list of such circumstances. Investigators and judges often face difficulties in practical application of the rules enshrined in articles of Chapter 8 of the Criminal Code (especially provisions concerning necessary defense, extreme necessity, reasonable risk). The reasons for theoretical and practical problems related to the circumstances excluding the criminal nature of the act are largely preconditioned by the insufficient research of the institution under consideration in the general theory of law. This fundamental theoretical legal science lacks general legal equivalents of the criminal law concepts “criminality of the act”, “circumstances excluding criminality of the act.” It is proposed to introduce into scientific circulation the general legal equivalent of the concept “criminality of the act” — “delinquency of the act”, representing the set of such features of the offense as public harm, wrongfulness, culpability and punishability. This new legal design will allow us to investigate the phenomenon of circumstances excluding criminality of the act in the light of a general theory of law, to determine the possibility and limits of their subsidiary application in various branches of law. Thus, categories of circumstances excluding criminal, administrative, civil. disciplinary delinquency of acts will acquire the right to exist in differnt legal sciences and relevant branches of law. This, in turn, will contribute to improving the effectiveness of protection of rights, freedoms and legitimate interests of the individual, ensuring the interests of the society and the state.

Exemption from criminal liability as an alternative to criminal prosecution

This article is researching an institution of exemption from criminal liability as an alternative to criminal prosecution on the basis of current criminal procedure legislation, scientific researches and judicial practice. It was found that some researchers of exemption from criminal liability refer it to the forms of criminal liability, consider exemption from criminal liability as an institution of criminal law that differentiates liability; a radical means of differentiating a criminal liability; a legal fact that terminates a criminal legal relationship, which exempts a person from adverse legal consequences, etc. Having analysed the positions of foreign and domestic scholars, it can be concluded that the norms which provide for exemption from criminal liability should be considered as «an alternative to criminal prosecution». Exemption from criminal liability is provided for in the criminal law due to the fact that in some cases there is no point in subjecting a particular person to criminal liability, as criminal liability, being lawful, is considered as an inexpedient one. The state responds to a criminal act not leaving it without consequences, but reacts in another, «alternative» form, reaching a justified legal compromise in such cases. It is proved that the institution of exemption from criminal liability is implementing a desire of the state to effectively and rationally fight against crime without punishment and in general without a guilty verdict (conviction). This institution is simultaneously implementing the principles of economy of criminal repression, humanism and individualization of liability. Thus, the legislator has provided an alternative to criminal prosecution in the relevant provisions of the Criminal Procedure Code and the Criminal Code. This alternative in certain cases includes a compromise – a person who first time committed a criminal offense or negligent minor offence, except for corruption offenses, is being exempted from criminal liability if this person: has sincerely repented after commitment of offence, has actively contributed to the disclosure of the criminal offense and has fully reimbursed the damage caused by it or has eliminated the damage (Article 45 of the Criminal Code); has reconciled with the victim and has reimbursed the damage caused by such a person or has eliminated the damage (Article 46 of the Criminal Code); when transferring on parole to the staff of the enterprise, institution or organization within a year from the date of parole such person will justify the trust of the staff, will not evade educational measures and will not violate a public order (Article 47 of the Criminal Code). Key words: alternative, liability, exemption, compromise, punishment.

К вопросу об условиях правового компромисса

In recent years, the number of cases of recourse to the phenomenon of legal compromise has increased in legal practice. Its use has raised a large number of new theoretical questions for scientists. According to the author, the most significant among them is the problem of determining the conditions of legal compromise. The article attempts to study their legal nature and role in strengthening the stability of the social system. The author’s efforts are aimed at identifying and analyzing the system of basic conditions of legal compromise.

Doctrinal analysis of legal compromise and its role in human rights

Doctrinal analysis of legal compromise and its role in human rights

Cyber Security: New Standards, New Expectations for the 21st-Century Legal Practitioner

The somewhat organic nature of technology or digitalization and the evils thereof, coupled with the need for survival of the 21st-century legal practice on the same make cyber security a burning issue in the field of law. The legal practitioners/clients' privilege and legal practitioners' duty of confidentiality owed to clients make the subject more topical herein. It is now indubitable that cyber attacks are real. Different attacks, such as legal email compromise, denial-of-service, phishing, data infiltration and monitoring for insider trading opportunities, among others, have grown steadily in recent years and law firms are not left out as major victims. This paper considers the meaning of cyber security, its particular relevance in law, the compliance level of law firms with cyber security measures in the 21st-century and the consequences, and the way forward.

Academic nursing leadership in the U.S.: a case study of competition, compromise and moral courage

Public, private, non-profit and for-profit nursing education enterprises in the U.S. are competing with one another in a newly complex and volatile educational landscape, placing academic leaders into situations fraught with moral, ethical and legal compromise with few precedents for guidance. This case study provides a richly contextualized narrative exploration of ethical and legal challenges to one leader’s moral courage, a fictionalized exploration drawn from multiple sources over time, to form a composite that is nonetheless firmly rooted in the complexity and competitiveness characteristic of nursing education today. Our purpose is three-fold: 1) to direct the reader to moral and ethical questions that require thoughtful discourse and analysis among current and future academic nursing leaders; 2) to raise the issue of the need for regulations and oversight that reflect the changing realities of today’s increasingly complex and competitive educational arena; and 3) to encourage nursing education leaders to share additional cases that resonate for them, and in so doing, to expand the wellspring of ideas from which we can all draw in becoming more effective and morally courageous leaders.

К вопросу о классификации правового компромисса

The legal compromise is an effective tool for the prevention and resolution of important social conflicts. The prospects of its practical use depend on the completeness of scientists and lawyers ideas about its essence, functions, place in the mechanism of legal regulation, etc. Among such issues, a special place is occupied by the problem of types of legal compromise. It should expand and systematize the information accumulated by modern legal science about it, serve as a general theoretical prerequisite for future scientific research. The system of knowledge, reflecting its main types, allows to clarify the scope of legal compromise, the order of its use, the specifics of the impact on public relations. In this regard, the construction of a classification of legal compromise is an urgent task of modern jurisprudence.

Social pressure and the making of wartime civilian protection rules

The protection of civilians from the dangers of warfare constitutes an imperative in contemporary global politics. Drawing on original multiarchival research, this article explains the codification of the core civilian protection rules within international humanitarian law in the 1970s. It argues that these crucial international rules resulted from the operation of two central mechanisms: Third World and Socialist-led social pressure and a strategic, face-saving reaction to it, leadership capture, in the politicized context of Cold War and decolonization-era international social competition. I demonstrate the conditional effect of social pressure by a coalition of materially weaker Third World and Socialist states upon powerful reluctant states: the United States, the United Kingdom, and more surprisingly, the Soviet Union. Third World and Socialist social pressure fostered a curious US-USSR backstage collaboration I label leadership capture, decisively shaping the legal compromise embodied in the civilian protection rules of Additional Protocol I to the Geneva Conventions. Theoretically, this article furthers burgeoning IR work on the connection between social pressure, status competition, and international rule-making. Empirically it presents a new archives-based history of an intrinsically important case in international law.

Looking for legal compromise in implementation the supplementary protection certificate

The implementation of supplementary protection of inventions on medicines need to search and to keep balance between the interests of patent holder and interests of society in such sensitive sphere as health care.The both Ukrainian drafts of law contains the article which regulates the grant of the SPC and determines the procedure. However, both drafts do not determine the basic patent for which the SPC could be granted. The big gap of the drafts is also the absence of scope of the patent rights for which the SPC could be granted. Basing on the EU experi­ence the scope of the SPC should be determined and restricted by the scope of the patent for which the first marketing authorization was granted in a market. We could not avoid the abuse of patent rights without such restriction. We also should link the right on SPC with the first appearance of medical product in the world market and its’ registration in national market in Ukraine. Ukraine should grant SPC on really innovative medical products which come to the national market not later then 1 year from the date of its’ first appearance in the market.The Article 220 of Association Agreement between Ukraine and EU determines that The Parties recognise that medicinal and plant protection products protected by a patent in their respective territory may be subject to an administrative authorisation procedure before being put on their market. They recognise that the period that elapses between the filing of the application for a patent and the first authorisation to place the product on their respective market, as defined for that purpose by the relevant legislation, may shorten the period of effective protection under the patent.The Parties shall provide for a further period of protection for a medicinal or plant protection product which is protected by a patent and which has been subject to an ad­ministrative authorisation procedure, that period being equal to the period referred to in paragraph 1, reduced by a period of five years.In the case of medicinal products for which paediatric studies have been carried out, and the results of those studies are reflected in the product information, the Parties shall provide for a further six-month extension of the period of protection referred to in para­graph 2 of this Article.Thus, the article determines only principles of SPC, all internal legal rules could by determined by the country-party itself. Ukraine should impellent id SPC only bas­ing on the same legal grounds like in EU.

The Dragon-Kings Restraint: Proposing a Compromise for the EEZ Surveillance Conundrum

The U.S. and China are at it again, as naval and aerial interceptions in and around the South China Sea become a matter of disturbing routine. At the heart of the dispute stands the lingering question of whether customary international law as reflected in the United Nations Convention on the Law of the Sea (UNCLOS) authorizes third State to engage in surveillance and military maneuvers in Coastal states EEZ without their consent. The answer lies in interpreting Article 58(1) of UNCLOS. This paper aims to respond to the calls put forward by States, scholars and research institutes to promote a legal compromise between permissive and prohibitive interpretive approaches to UNCLOS Art. 58(1). The traditional interpretation of the Article, and the EEZ Surveillance conundrum more broadly, has thus far been reviewed by scholars solely through the lenses of the age-old debate between Hugo Grotius and John Selden over Mare Liberum and Mare Clausum. In other words, existing scholarship treats the dispute as a binary zero-sum game. Following in the footsteps of Prof. Lissitzyn, the model proposed in the Article recognizes the freedom of navigation premise as an analytical starting point, but nonetheless introduces, for reasons of maintaining minimum order, a set of restraints (necessity, last resort, and proportionality) to be internalized by third States' in deciding whether to launch intelligence operations in another coastal State’s EEZ. To develop these standards the paper examines the limits of a State's right to spy under international law and the effects that advancements of surveillance technology have had over our evolutionary interpretation of UNCLOS. The paper's nuanced approach thus treats the EEZ surveillance problem as a microcosm through which to examine meta- issues concerning the function intelligence plays in our public world order.