Legal Arguments Research Articles

Legal Policy in the Decision of the Constitutional Court and the Formation of Law

Objective: The purpose of this research is to raise the Criminal Law Act as a hotly debated topic. Some people think that the Constitutional Court should have the courage to make a legal breakthrough on this very important issue. However, the Constitutional Court judges are of the opinion that expanding the meaning of adultery is not within their jurisdiction. This research aims to examine further the legal arguments of the Constitutional Court's decision which is an open legal policy and its implications for the formation of laws and regulations in Indonesia. Method: The research method used is literature research with a legal approach and case studies of several Constitutional Court decisions which contain open legal policy arguments. Conceptually, this research will also discuss the implications of the Constitutional Court's decision containing the open law policy for the national legislative system. Results: The research results show that first, the concept of open legal policy in Constitutional Court decisions does not yet have clear boundaries so that the meaning of positive legislator and negative legislator is often confused in the practice of forming and reviewing laws. This decision, which is an open legal policy, also shows that there has been a tug-of-war between the judges of the Constitutional Court in using the paradigm of judicial activism and judicial restraints, giving rise to legal uncertainty in society.

What level of respect does opposition to same-sex marriage deserve in a democratic society?

The opening of marriage to same-sex couples shifted the legal debate from whether that should be done to the extent to which individuals and organisations can lawfully refuse to engage with same-sex marriage or can continue to argue against such marriages. This raises the question of the level of respect that needs to be shown to anti-LGBT (lesbian, gay, bisexual, transgender) views in a democratic society, a question that ought to have been, but was not, the central issue in Lee v Ashers Baking Company Ltd. By focusing on the right not to express a view that the defendants in that case did not hold, the United Kingdom(UK) Supreme Court avoided examining the views that they did, in fact, hold. The defendants’ belief that LGBT people are sinful, manifested in their opposition to same-sex marriage, is in essence a belief in heterosexual superiority, which is a form of homophobia and therefore inconsistent with the values underlying the European Convention on Human Rights (ECHR), especially that of dignity. This article explores the level of respect such beliefs and their expression can expect to receive in the UK. It concludes that it should be no higher than ‘toleration’. It will identify as the central flaw in the Supreme Court’s approach that it afforded a higher level of respect than toleration, that it allowed the belief in heterosexual superiority to exempt the defendants from a legal obligation that would have to be met by those whose views on homosexuality were more in line with the values of the ECHR.

Beyond the Tram Lines: Disability Discrimination, Reproductive Rights and Anachronistic Abortion Law.

This article takes as its starting point the recent case of Crowter, which challenged the law permitting provision of abortion on the grounds of fetal anomaly. It begins by briefly locating the case within a longer 'biography' of the Abortion Act 1967, casting important light on the issue raised within it. It then focuses in detail on the claims made in Crowter, exploring how important moral, social and political concerns with disability discrimination were refracted through an anti-abortion lens as they were translated into legal argument. As a result, the legal remedies sought were simultaneously disproportionate and insufficient to address the harms described. Whilst agreeing that the Abortion Act reflects anachronistic and discriminatory understandings of disability and is overdue reform, the article argues that a response that fully reflects modern ethical values will require more radical change than envisaged in Crowter, and that this must refuse an opposition between the rights of pregnant and disabled people.

Changes and Reactions in the Fundamental Issues of Hungarian Company Law – Contributions to International Trends in Legal Regulation, Liability and Corporate Governance1

Throughout the first decades of the 21st century there have been numerous traditional and modern impacts on Hungarian company law. As a result of the codification of Hungarian civil law, the Civil Code of 2013 incorporated the previously effective substantive legal regulations of company law. Prior to this, Hungarian company law had undergone several modifications, beginning with the change of regime in 1989, through the years of its preparation to join the European Union, and during the initial phases of digitalization. Some more recent influences are, on the one hand, either international in origin (for instance: corporate governance, compliance), or, on the other hand, approaches taken from the legal debates on company law, which have evolved with the development of the law. Modern results demand both reconsideration and synthesis, in order to enable company law to fulfil its duties and achieve its purpose. Company law, corporate governance, mandatory and default rules, liability of director, liability of member, Hungary, Hungarian Civil Code, comply or explain, invalidity of memorandum of association, business association.

The Primacy Position of the Comparison Question

Abstract A simple question for many, idle for others, but necessary to answer for everyone, is why the comparison question occupies a first position based on the relevant question when it comes to format sequences corresponding to deception polygraph techniques. Th is questioning is transcendent when it occurs in the context of the scientific, legal debate, or due to the scrutiny of polygraph consumers who make administrative decisions based on the diagnostic results. However, within the polygraphy union it seems that the answer has been dealt with in informal settings, in hallway talks or as a classroom topic, but the truth is that its documentary formality seems to be scarce, for this reason, this discussion has the intention of providing basic knowledge to field examiners about this procedural unknown, of which, we are convinced that they are the ones who must be prepared to answer this and other procedural questions in order to maintain the scientific reputation of our profession.

Teoria da Argumentação para a concepção do Direito como integridade de Dworkin: Uma impossibilidade?

The article aims to verify the possibility of an argumentation theory within the framework of Ronald Dworkin’s theory of Law as Integrity. The research is based on a literature re-view based on the analysis of the epistemological contradiction between the current theories of legal argumentation and the theory of Law as Integrity, based on Hans-Georg Gadamer and Ronald Dworkin. We conclude that, despite this contradiction, a theory of argu-mentation is possible within Dworkin’s theory, as long as the logic of developing a previous and methodical path to reach a metaphysical truth is overcome. Without illusions or relativism, we propose the acceptance of Law as Integrity, founded on hermeneutic bases, as an alternative for the strengthening of an argumentative process within the scope of a Democratic State of Law.

Autonomous weapon systems and IHL compliance: A constrained legal optimisation problem

Abstract Arguments have been made both for and against military use of autonomous weapon systems (AWSs) on the basis of how they will help or hinder a state in meeting its international humanitarian law (IHL) obligations. Often, these arguments are made in isolation, or they fail to address all of the potential compliance concerns related to autonomous weapons. This is not ideal. It means the bearers of legal obligations must locate, assess and piece together the disparate arguments into a coherent structure if they are to know whether they can legitimately utilise a particular autonomous capability and, if so, in what circumstances. This article offers a high-level description of a conceptual framework which can be used to organise and assess legal arguments about autonomous weapons. It proposes that the task of integrating autonomous capabilities into an armed force may be viewed as a constrained optimisation problem wherein the task is to find the optimal balance between the fundamental principles of IHL while also satisfying all normative, technological and strategic/operational constraints.

Cultivating change: agroecological perspectives on EU pesticide law

AbstractIn search of a climate-neutral Europe, the EU Green Deal presented agroecology as an alternative guide for food system transitions through explicit policy and regulatory actions. While the term agroecology is used in Green Deal policy documents, its meaning remains elusive in both policymaking and academic legal research. To explore existing regulatory frameworks’ potential to align with agroecological perspectives for food system transitions, this article analyses pesticide regulation, a core area of agricultural governance, using an agroecological framework. This article aims to contribute to the current legal debate in two ways: it presents agroecology as a framework capable of guiding and assessing law and regulation and illustrates, via a study of EU pesticide regulation, how this framework can be deployed in practice to evaluate legal frameworks.

Headscarves at the Crossroads between Plural Narratives: Where is Turkey Moving Toward?

Abstract In a recent judgement, the ECJ held that a ban on employees wearing visible political, philosophical or religious signs in the workplace does not amount to direct discrimination under EU law. The Turkish government condemned such a ruling, as an expression of European Islamophobia. However, the issue of religious headscarves has been at the center of a harsh decades-long political and legal debate in Turkey, where it has symbolized the clash between tradition and modernity, religious and secular values. In the present article, the tensions underlying the multiple narratives of the Islamic headscarf will be analyzed starting from the polarization between two opposite views: Turkey as a secular State versus Turkey as a theocracy. The article will underline the need for a depolarization of the legal-political conflict between religion and public space, allowing women to build their autonomous understanding of the religious message and to self-define their identities in the public space.

JUDICIALIZAÇÃO DA EDUCAÇÃO ESPECIAL

The specialized literature records the growth of judicialization processes in the field of education. Given this panorama, this article reports a research whose objective was to investigate the judicialization of Special Education in a municipality at the State of Mato Grosso do Sul, based on the applicability of students' rights for their regular inclusion in education. The research has an analytical and explanatory character and was carried out through bibliographical and documentary research. Judicial decisions handed down in the municipality from 2009 to 2020 were analyzed. It was found that, despite the existence of several judicial decisions within the time frame, only three cases of request for intervention by the Judiciary Power were recorded. It was observed that, based on legal arguments, what really mattered for the intervention or not of the Judiciary was the verification of access to specialized educational assistance for the child, regardless of whether it was in the public or private network. It was concluded that, in the investigated period, there was a low level of judicialization regarding the inclusion of the Special Education Target Public and that the institutional offer of some form of specialized educational assistance was recognized, by the courts, as a service provided.

The Role of Soft Law of the Council of Europe in Polish Court Proceedings: A Historical Overview

Abstract This paper presents a historical overview of the role of soft law of the Council of Europe in Polish court proceedings. Soft law refers to legal acts that are not formally legally binding, but nevertheless constitute important guidelines for the operation of state authorities. The article focuses on the role of documents adopted by the Council of Europe, such as resolutions, recommendations or declarations, in the process of shaping the Polish legal system. An analysis of the guidelines and standards introduced by the Council of Europe in the field of human rights protection, equality and standards of court proceedings has been undertaken. The paper also shows the evolution of the position of Polish courts in relation to the soft law of the Council of Europe. Have the documents adopted by the Council of Europe been incorporated into legal arguments and jurisprudence in the Polish legal system and how? The study aims to outline the historical key moments and trends in the application of soft law of the Council of Europe in Polish court proceedings. It shows the impact of these soft instruments on the development of the Polish legal system and legal culture, as well as on the evolution of the perception and use of international standards by Polish courts.

International Perspectives on Jordan’s Legislation on Deprivation of Liberty Prior to Trial

Abstract The right to personal liberty is fundamental for individuals and societies based on the rule of law. The United Nations Universal Declaration on Human Rights and United Nations International Covenant on Civil and Political Rights broadly define rules limiting possible pre-trial detention and protecting against arbitrary detention. Since 1961 the Code of Criminal Procedure has regulated detention in Jordan and in 2017, there were comprehensive revisions of the Code on these matters. To better understand factors that shaped the scope of the Code revisions in 2017 and to question whether the Code of Criminal Procedure fully adheres to ICCPR international human rights norms, this paper will draw upon political and legal debates prior to 2017 and upon legislative amendments, legislative text and subsequent jurisprudence. In so doing, this paper will critically examine whether the Jordanian legislation respects the right of personal liberty.

Dharmaśāstra and the legal personality of deities in the Ayodhya verdicts (2010 & 2019)

ABSTRACT This article explores how Hindu deities and places of worship are understood as legal persons in the Supreme Court of India’s (2019) and the Allahabad High Court’s (2014) verdicts concerning the ‘Ayodhya Dispute’ – M. Siddiq v. Suresh Das. It discusses the Courts’ interpretations of a specific Sanskrit maxim attributed to the sixteenth Century Sanskrit jurist, Raghunandana Bhaṭṭācārya, in the specific context of their distinction between the juridical personality of the deities Rām Lalla Virajman (the infant form of Rāma worshipped at the Babri Masjid/Ram Janmabhumi site) and Asthan Rām Janmabhūmi (the deification of contested site itself). The Allahabad High Court invoked Raghunandana to justify a faith-based application of Sanskrit jurisprudence (Dharmaśāstra) to expand the Hindu community’s constitutionally-protected rights to freedom of religion into a legal weapon with which to assert control over India’s contested geography. The Supreme Court, however, rejected this majoritarian ‘Trojan Horse’ by reframing Raghunandana’s maxim – as cited in a body of judicial precedent – to support the legal personality of Rām Virajman merely as the pious purpose of worship at Ayodhya. Legal debates about the juristic personality of Hindu deities are inseparable, I argue, from determinations about the ownership of some hotly-contested religious sites in India.

Performance analysis of large language models in the domain of legal argument mining.

Generative pre-trained transformers (GPT) have recently demonstrated excellent performance in various natural language tasks. The development of ChatGPT and the recently released GPT-4 model has shown competence in solving complex and higher-order reasoning tasks without further training or fine-tuning. However, the applicability and strength of these models in classifying legal texts in the context of argument mining are yet to be realized and have not been tested thoroughly. In this study, we investigate the effectiveness of GPT-like models, specifically GPT-3.5 and GPT-4, for argument mining via prompting. We closely study the model's performance considering diverse prompt formulation and example selection in the prompt via semantic search using state-of-the-art embedding models from OpenAI and sentence transformers. We primarily concentrate on the argument component classification task on the legal corpus from the European Court of Human Rights. To address these models' inherent non-deterministic nature and make our result statistically sound, we conducted 5-fold cross-validation on the test set. Our experiments demonstrate, quite surprisingly, that relatively small domain-specific models outperform GPT 3.5 and GPT-4 in the F1-score for premise and conclusion classes, with 1.9% and 12% improvements, respectively. We hypothesize that the performance drop indirectly reflects the complexity of the structure in the dataset, which we verify through prompt and data analysis. Nevertheless, our results demonstrate a noteworthy variation in the performance of GPT models based on prompt formulation. We observe comparable performance between the two embedding models, with a slight improvement in the local model's ability for prompt selection. This suggests that local models are as semantically rich as the embeddings from the OpenAI model. Our results indicate that the structure of prompts significantly impacts the performance of GPT models and should be considered when designing them.

Computing Legal Analysis: A Guided Approach to Problem Solving in Contract Law

The paper proposes a guided methodology for problem solving in a first-year undergraduate contract law module. Developed from our teaching practice and inspired by theories of computational modelling, our approach helps students to identify and extract legal information from primary and secondary sources, and to organise what they have learned into structured frameworks. The method creates scaffolding for learning and a framework through which legal issues can be identified. These frameworks can be used to locate legal information relevant to the construction of analysis and argument to the point of producing legal advice with confidence. The paper describes our approach in five distinct stages: (1) extracting doctrinal content from legal sources, (2) organising such content into a coherent framework, (3) applying the framework to problem scenarios, (4) constructing , and (5) writing up detailed, authoritative, and persuasive legal advice.. Our methodology embeds essential skills aided by a “semantic web” of concepts from which one could draw inferences, and uses computer-inspired visualisation for constructing arguments. Computational thinking allows students to visualise connections between the initial categorisation of legal information and the constitutive elements of a persuasive legal argument to articulate and demystify the process of producing legal advice.

Negotiation of justice: the discursive construction of attitudinal positioning in bilingual legal judgments of HKSAR v KWAN WAN KI

Abstract In appeal cases, judges from different levels of courts may have varying perspectives on the same set of facts, leading to different sentencing decisions. This study focuses on a specific traffic incident case in Hong Kong. In this case, a trial judge and a collegial panel at the High Court hold divergent opinions regarding the same set of facts, expressed through two different narrations and varying degrees of leniency in their rulings. By applying the framework of Appraisal Theory within a contextualized analysis, this paper reveals that the trial judge and the appellate judges employ differing amounts of evaluative expressions in reaching their decisions. I argue that evaluative language functions as a discursive strategy for negotiating justice, encompassing the narration of legal facts and the construction of legal arguments across different levels of the court system. Furthermore, through an examination of discrepancies between the two language versions, I contend that evaluative expressions, particularly the degree of attitude within the Appraisal Framework, warrant attention in the practice of legal translation. This attention is crucial for achieving a consistent level of emotive entropy in both language versions.

Examining the Criminal Aspects of the Indonesian Plant Varieties Regime and Farmer Protection for Food Sovereignty

This research investigates the Plant Varieties Regime's role in safeguarding farmers' rights in plant development and cultivation in Indonesia. Specifically, it scrutinizes criminal provisions concerning farmers accused of producing seeds without the right holder's consent, as evident in multiple court decisions. These verdicts have ignited legal debates that conflict with the principles of food sovereignty. Given that nearly 90% of corn plants are cultivated through traditional farmer knowledge, the increasing dependence on the seed industry disrupts agricultural practices passed down through generations. The Plant Variety Protection Act (PVP Act) inadvertently encourages seed industry monopolization. This paper advocates a coherent approach in compliance with Article 27(2) of the 1945 Constitution to address these legal issues and establish a just legal framework. The primary legal discourse centers on equitable protection, necessitating a re-evaluation of the PVP Law, which is perceived as restricting plant development opportunities and discriminating against farmers. Farmers, as stewards of seed development and livelihood, should not face criminal charges encroaching upon their rights. Employing a normative methodology involving statutory, conceptual, and case analyses, this study examines the criminal aspects and legal protection of farmers' rights in corn seed cultivation. Ultimately, the paper recommends revising the PVP Law, emphasizing the importance of coherent legal thinking when shaping criminal policies. On a practical level, it calls for collaborative efforts among stakeholders to bolster agricultural sovereignty, particularly in the corn sector, by prioritizing farmers' rights. In summary, this research aims to provide recommendations for enhancing farmers' protection against the criminal provisions outlined in the PVP Act, which holds a pivotal role in shielding farmers engaged in corn seed cultivation.

“Safe Legal Pathways” or New Colonial Frontiers? A Critical Analysis of European Intervention in the Sahel and the Creation of Anomalous Legal Zones

Abstract This article critiques the increasingly popular concept of the “safe legal pathway” in refugee politics, policy and law, using European engagement and intervention in the Sahel as its primary case study. It draws upon neo-colonial studies, necropolitics, border studies and the legal literature on sovereignty and extraterritoriality to explore the function, structure, and import of the “safe legal pathway”, and its compatibility with contemporary understandings of international legal history and argumentation. Divided into four sections, the article focuses on the drivers behind Europe’s migration-development-security objectives in the Sahelout of which the pathways discourse emerges, the EU’s concomitant insistence on criminalising the illusive “people smuggling business model”, and the role which the traditional tropes of sovereignty, territory, and civilisation play in determining policy parameters. Noting the multidirectional nature and multifunctional purposes of pathways, and focusing on the policing of migrant communities both within and outside Europe, this article provides a comprehensive and critical overview of the nature, structure, function, and regulation of the pathway, its susceptibility to being leveraged for the commodification, extraction, discipline and transformation of non-European bodies and narratives, and its place in the creation of differentiated, suspended, and anomalous legal zones for the transfer and manipulation of global norms.

Challenges in Legal Argumentation: A Swedish-Finnish perspective

Challenges in Legal Argumentation: A Swedish-Finnish perspective

Formation and development of legal-communicative competence in the framework of higher legal education

Introduction. The solution of the formation and development problem of legal-communicative competence within the framework of higher education is one of the most urgent issues of legal education modernization, as the mastery of such competence is considered a component of professional suitability and is a special competitive advantage in the legal profession. The aim of the article is to analyse theoretical and practical aspects of the formation and development of legalcommunicative competence in accordance with its structural elements within the framework of higher legal education. Materials and methods. The complex content of the elements of legal-communicative competence determined the use of an interdisciplinary approach to its research and the application of legal, pedagogical, philological and psychological scientific methodologies. The materials of the research were scientific works devoted to the problems of communicative competence, various aspects of the formation and development of communicative competence in legal education, materials of scientific periodicals, dissertations, works of the world's leading scientists in the field of communicative competence, materials and reports of UNESCO in the field of education, which are publicly available on the Internet and in official reports. Results. The formation and development of legal-communicative competence can be considered through the prism of its structural elements formation. Pedagogical conditions for the formation and development of individual elements of legal-communicative competence include acquiring the skills of communicative competence in the study of various disciplines throughout the period of study (integration of theoretical and practical training, increased attention to legal practice, involvement of practicing lawyers in the educational process), as well as the acquisition of communicative skills in the framework of certain special disciplines (such as "Speech Culture and Business Communication", "Legal Conflictology", "Legal Argumentation", etc.). Conclusion. The practical significance of the results is determined by the development of recommendations for the formation of legal-communicative competence. The educational process should take into account the pedagogical conditions of the formation of communicative competence of future lawyers, which will ensure their readiness to interact in the professional sphere and to cooperate.