Legal Paradoxes Research Articles

The Liminal, The Licentious, and the Illicit

Despite the political, economic, social, and cultural importance of piracy, images of Atlantic piracy and privateering are rarely represented in seventeenth century Dutch visual culture. The illustrations created by Herman Padtbrugge for A.O. Exquemelin’s De Americaensche Zee-Roovers are a rare exception. The bestselling book, with its first-hand account of life as a buccaneer, was widely distributed throughout Europe and formed the basis of both our historical understanding of Caribbean piracy and its place in our poetic imagination. The transient distinction between piracy and privateering is linked to the cultural perception of the high seas as a freer, more open space, despite its increasing regulation and militarization. This article explores how the pictorial conventions used in the portrayal of pirates reflect their role as liminal figures – constantly shifting between licit and illicit, Old and New Worlds, and national affiliations – in the multicultural, rapidly evolving, and violent colonial context. Padtbrugge’s portraits borrow the visual language of the cult of naval heroes, only altering a few iconographical markers to indicate on which side of the law the subject and his actions fell upon. The minor nature of these differences reflects how heroic privateering in the service of national interests and criminal piracy in service of the individual were two sides of the same coin, shedding light on the legal paradox of the state-sanctioned right to pillage.

Transformation of Anthropological Legal Values of Human Existence under Conditions of War

Purpose. The main purpose of the article is to study the anthropological and socio-philosophical dimensions of human existence in the context of hostilities by highlighting the aspects of transformation of anthropological legal values of human existence during the war. Theoretical basis. The methodological tools are presented in the interaction of axiological, synergetic, socio-legal and comparative methods. The survey method is used to obtain quantitative data on the self-assessment of Ukrainian citizens in relation to the war, changes in their internal intentions as a result of the crisis of social reality. Originality. Military actions can act both as a catalyst for the formation of new anthropological legal values, in accordance with the specifics of martial law and the need to adapt legal systems to the challenges arising in wartime, and as a destructor of certain value attributes of society. Conclusions. The nature of paradigmatic changes in wartime is represented by the metamorphosis of anthropological legal values, which manifests itself in profound changes in the philosophical understanding of man, the transformation of legal principles and the revision of moral norms in society. Reflections on the legal paradox appear in attempts to balance the need to keep within the law with the requirement to ensure security and defence in the first place. The article highlights the following aspects of changes: revision of the concept of individual rights and freedoms by recognising that individual rights may be subject to restrictions for the sake of the common good or national security; new legal values arise which are related to the protection of human rights in war conditions.

Incest - A Legal Paradox: Point of View in Personal Laws and the Growing Criminal Concerns

Incest means sexual intercourse between a male and a female who are closely linked by blood or affinity provided that such people are prohibited by law to marry or to conduct a sexual activity. Though the majority in the society treat this as an immoral act, the law does not have the strong stand over incest. Nevertheless, an act becomes a crime when it is expressly declared to be a crime under the legislation, not just because of an act which is immoral. Even though Section 376(2)(f ) talks about incest in a implied way by having this wordings “being a relative, guardian or teacher of, or a position of trust or authority towards woman ,commits rape on such woman”, that provision was found to be ineffective because of less number of cases being reported on that arena according to statistics. And punishing the accused under Rape is found to be inappropriate because of the key difference called “trust” because rape is committed by a person who is unknown and incest is committed by a person who holds a position of trust. Therefore, an amendment have to be brought in IPC or any criminal legislation which separately have a provision for incest. The basic object behind this paper is an attempt to critically examine the legality of the incestuous relationship in the personal laws and analyse the reporting of cases pertaining to incest according to statistics and suggesting the lawmakers to make an amendment which provides an effective provision for incest.

On the right of the taxpayer not to comply with unlawful acts and requirements of tax authorities: problems of theory and practice

The subject of the study is a little-studied issue in the theory of tax law related to the implementation of the taxpayer’s subjective right to selfdefense. The article analyzes the law enforcement practice that reflects the problems of implementing this right. The author describes his own experience of non-compliance with illegal requirements of tax officials and related legal consequences. The author reveals a legal paradox and a conflict: on the one hand, the taxpayer’s ability to respond quickly to violations committed against him, on the other hand, the presumption of legality of actions and acts of tax officials. The author substantiates the idea that this right of the taxpayer is not supported by any guarantees. It is concluded that the taxpayer’s legal capacity to prevent illegal acts and actions of public authorities is illusory. The author’s personal observations are used as evidence. There is a need for explanations from the higher judicial authorities on the procedure and form of unhindered use of the right not to comply with illegal acts and requirements of tax authorities and their officials.

Legal Paradox: Protection of Victims Taking the Law into Vigilantism

Widespread public ignorance about vigilante behavior has led to violent incidents in which individuals use violence as a means to vent their emotions on criminals they apprehend directly. Unfortunately, some victims have lost their lives due to these actions. This behavior can be equated with the crime of torture when viewed from the perspective of Indonesian criminal law, which does not have specific rules regarding vigilante acts. Due to anxiety and distrust of law enforcement agencies, vigilantism is becoming increasingly common. Through normative studies using both the old and newest Criminal Codes and other regulations as internal parameters, we can understand the seriousness of the government's role as a stakeholder in regulating society through the law. By combining various sociological approaches, research can thoroughly investigate the condition of society. The discussion begins with understanding the concept of vigilantism, legal protection, and legal assistance, forming a pattern of thinking about society, followed by an understanding of the rule of law that overshadows vigilante actions from both the perpetrator and victim's perspective. With the hope that basic individual rights are maintained in the Indonesian state with the Pancasila ideology, the law aims to establish public order with a general perspective to achieve the necessary justice. This requires understanding and support from all parties. In essence, future efforts must be preventive and repressive.

Informed consent and compulsory treatment on individuals with severe eating disorders: a bio-ethical and juridical problem.

The problem concerning the activation of the measure of Compulsory Health Treatment (CHT) for subjects suffering from Eating Disorders (ED) represents a legal paradox that places health professionals in the position of frequently doubting the real usefulness of the measure within the hospital context. This issue is mainly related to anorexia nervosa, which puts the subject in a higher life-threatening situation than other EDs. To outline the current state of the art, the most recent national and international scientific publications concerning informed consent and CHT in EDs were searched. In addition, Italian rulings in various degrees of judgement were evaluated with the suggestion of a possible resolution of these issues. The analysis of the literature showed that although a multitude of psychometric instruments has been created to identify the ability to give informed consent, there are still not all the elements necessary to identify the actual degree of disease awareness of ED subjects. An important factor could be the exploration of the person's interception, which has been seen to be very high in individuals with AN who are known not to experience the sensation of hunger. At present, reviews of the bibliography and judgments have shown that the measurement of CHT remains crucial if it is intended as a life-saving treatment. However, it is evident that in terms of BMI, CHT is not a definitive intervention and therefore the adoption of this practice is necessary with extreme caution taking into account the person's actual ability to consent. Future studies will have the task of determining the psychic factors necessary to better understand the state of the person in his or her physical and mental wholeness, giving due weight to these characteristics and orienting knowledge in a practical sense to more profitable direct treatment for individuals with ED.

THE HISTORICAL BACKGROUNDS OF MEDICAL LAW’S ACTS APPEAR IN ANCIENT AGE

Article proposed discusses the problems of historical development of medical and social relations as preconditions for the emergence of norms of medical law in the states of the Ancient World. The purpose of this work is the retrospective review of public relations, which became a prerequisite for the emergence of legal acts in the field of medicine of the ancient world; identification of their regularities, features and dialectical relations; separation of relations in the field of medicine, which, due to their public significance, needed and need legal settlement, in particular, at the expense of labor law; development of author’s conclusions and outlining of perspective directions of further scientific exploration. The research methodology is based on common scientific methods and empirical methods. In particular, it is concluded that the aforesaid relations needed to be regulated by the norms of labor, criminal and administrative law, which created a medical and legal triad of the settlement of public relations in the specified sphere. According to the historical and chronological feature, medical and social relations for the first time were regulated by the norms of labor law (norms on the remuneration of doctors, the Laws of Hamurapi, XVIII century BC). This fact generates a medical and legal paradox, since labor law as an independent branch is not recognized as a scientific doctrine for that period of time, but already in the XVIII century BC there were its subjects (doctors), sources (Laws of Hamurapi) and norms, even in conditions of slave rule. Above leads to certain doubts in the axiomatics of the formation criterion of social development and the correctness of approaches in determining the time of acquisition of independent status by the branch of labor law.

Scarcity, Property Rights, Irresponsibility: How Intellectual Property Deals with Neglected Tropical Diseases

The article addresses the role of scarcity in negotiating the relationship between intellectual property, particularly from a legal-economic perspective, and property rights, as understood by transaction cost economics, to shed light on the deadlock faced by those suffering from neglected tropical diseases (NTDs). The consistency of the law and economics fundamentals that support the trade on knowledge goods, namely patents on essential medicines, is put under check by Scott Veitch’s scholarship on legal irresponsibility. The damages that emerge from the operations of the intellectual property system are registered in the novel concept of negative public domain, and are due mainly to the lack of access to treatments that end up being unaffordable, or to innovation that leads to new drugs that is not sufficiently incentivised though price signals. The accountability for such damages is taken into consideration by arguing that the disavowal of responsibility is made possible by the negative public domain, which is balanced by the construction of a positive response through the language of rights. As such, responsibility per se is preserved, evading one instantiation of Teubner’s legal paradoxes, but rendered ineffective by design. In other words, even if the harms endured by those affected by the NTDs can be traced back to the operations of the intellectual property system, there is no one to hold accountable. The main goal pursued through the article is to make such an arrangement explicit, by giving centrality to the notion of scarcity and its interplay between legal and economic theory, alongside the novel concept of negative public domain as a site where the actual consequences of irresponsibility lie, to hopefully inform further critique in subsequent works.

Legal Uncertainty of a Service as an Object of Civil Rights

Based on a systematic analysis of civil law norms, the problem of regulatory consolidation of a service as an object of civil rights is revealed. In particular, grammatical awareness of the content of certain norms contained in the Civil Code of Ukraine allowed us to make a rather contradictory conclusion that the service is a material good, a thing that consists in the action or activity of the service contractor. This legal paradox exists due to several shortcomings of legislative technique. The first one concerns the conjunction "including", which, according to grammar rules, refers a service (as a specific concept) as things (as a generic concept). It follows from the above that the Union "Including" should be removed in Part 1 of the Art. 177 of the Civil Code of Ukraine. The second disadvantage is due to the lack of a separate norm that would determine a clear place of the service in the system of objects of civil rights. In this regard, and taking into account the essence of the service as an object of the intangible world, it is offered to supplement Chapter 15 "intangible benefits" with a separate Article entitled "Services", which should contain a definition of the concept of this object of civil rights along with other important provisions. Moreover, the concept of a service is applied contrary to its legislative definition according to the analysis of judicial practice, namely as its result, and not as a benefit, we offer that the word "services" and the phrase "results of work" in Part 1 of the Art. 177 of the Civil Code of Ukraine should be swapped. These amendments will contribute to legal certainty and reduce the manifestations of arbitrary interference by state agencies, including the court, in the rights protected in the Constitution of Ukraine and in the Convention for the Protection of Human Rights and Fundamental Freedoms.

Фикции и презумпции как прием юридической техники при наследовании и правовые парадоксы как их результат: сравнительный анализ российского и общего права

The article analyzes the special role of legal fictions and presumptions as the tools of the Succession Law regulation in comparison or Russian and American Law. Author depicts the difference of methods of these instruments use, concerning theories, classifications in relation to succession. The mechanism of legal paradoxes as the consequences of fictions is revealed.

Cultural Transplantation and Legal Paradox: The Case of the Indonesian Judicial Commission Versus the Supreme Court

The purpose of this research was to prove that solving a legal problem needed an interdisciplinary approach, more than merely pure law. It relates to the working culture of law, inter-subjective understanding and reform willingness. The research was done based on descriptive and qualitative method. It included content analyses of the use and misuse concept of regulation, its effect in actual practice and cultural barrier of law enforcement. The finding of this research proved that law enforcement was not like copying a paper. It related closely to the tradition, usage and custom of people. Transforming society only by introducing new regulation and state institution without cultural restoration ended in failure. Thus, the conclusion was the establishment of Judicial Commission in Indonesia, aimed at transforming the Supreme Court, to be more independent, impartial and accountable by supervising the ethical behaviour of the judge. But Judicial Commission is hampered by many difficulties legally and institutionally. Judicial Commission could not work and achieve its goal to bring about Supreme Court more transparent, not only because of legal obstacles but also cultural impunity.

CYBER-NOTARIES FROM A CONTEMPORARY LEGAL PERSPECTIVE: A PARADOX IN INDONESIAN LAWS AND THE MARGINAL COMPROMISES TO FIND EQUILIBRIUM

Notaries in Indonesia have existed since the colonial period. Changes in technology and the continuous evolution of information bring a flow of change in all aspects of life, including the legal sector. However, the position of notaries in Indonesia has not undergone significant changes despite ongoing advancements. The promulgation of Law No. 2 of 2014 formally introduced the term “cyber notary” to Indonesian law. However, the idea of cyber notary is not practical because of legal obstacles that seem to form a legal paradox. This work analyzes the position of cyber notaries in Indonesia’s positive legal order and the challenges, adaptations, and compromises actually made to implement cyber notaries in Indonesia. Normative–juridical legal research is adopted as a research method by examining various legal theories and performing comparisons of related laws. This work also presents examples of successful cyber notary implementations from several countries. Results reveal that the implementation of cyber notaries in Indonesia has yet to meet expectations because interrelated laws still create legal paradoxes. This condition results in the inability of notaries in Indonesia to fully evolve into cyber notaries. Recommendations for stakeholders are presented as valuable insights.

Abortamento criminoso, prova penal e sigilo médico: uma análise transdisciplinar

Objetivo: debater, a partir de revisão de literatura e de dispositivos normativos, conflitos éticos e paradoxos jurídicos que permeiam a tipificação adotada pela tutela penal para enquadramento do aborto criminoso, seus meios de prova produzidos pela medicina legal e o disposto no código de ética médica acerca do sigilo profissional. Metodologia: utilizou-se uma abordagem qualitativa com natureza descritiva e exploratória. Foi realizada revisão bibliográfica de artigos, normas e jurisprudência a partir de descritores pré-definidos. Resultados: a prova pericial na investigação de aborto criminoso constitui-se em ato que afronta o dispositivo do código de ética médica referente ao sigilo profissional, além de ferir a prerrogativa de autonomia dos corpos das mulheres e o preceito da não autoincriminação. Conclusões: a proteção das normas deontológicas referentes ao sigilo médico não tem sido capaz de conferir tratamento adequado a gestante nos casos de investigação de abortamento criminoso, sobretudo se considerados as bases fundamentais dos direitos reprodutivos: integridade corporal, autonomia pessoal, igualdade e diversidade.

Javno financiranje vjerskih zajednica i građanska prava u pluralnom i pluralističkom društvu

This paper initiates discussion on public (state / local) financing of religious groups. The impression is that it is not in their interest. The relationship between humanistic – lay constitutional directives is considered together with domestic and international contracts of state and religion. Taking these relations into consideration is founded on the presumption according to which state simultaneously protects plurality, freedom of religion, beliefs and conscious, and the dignity of humankind from which freedom of choice emerges. Also considered is from which of its institutions and authority religious groups are separated. One should not, with the same contract, create a relationship which destroys or makes subservient a part of constitutionally guaranteed citizen rights. The state model of financing religious groups from the state budget indicates an ethical and legal paradox because the government with one doctrine of identity uncovers several possibilities of legal involution of parts of fundamental and citizen rights. Such a contract indicates a disharmony of the constitution with the utilitarianism of co/managing non-confrontation.

Care of unaccompanied minors in a psychiatric emergency unit

Emergency psychiatric units are receiving more and more foreign unaccompanied minors: for many of these young people it is their first contact with psychiatric services. This context of crisis crystallises the administrative and legal paradoxes at work in the support of these youngsters. Coordination between emergencycare, statutory bodies and community-based care enables stability to be established while the care project is being set up.

Resolving the so-called “probabilistic paradoxes in legal reasoning” with Bayesian networks

Examples of reasoning problems such as the twins problem and poison paradox have been proposed by legal scholars to demonstrate the limitations of probability theory in legal reasoning. Specifically, such problems are intended to show that use of probability theory results in legal paradoxes. As such, these problems have been a powerful detriment to the use of probability theory – and particularly Bayes theorem – in the law. However, the examples only lead to ‘paradoxes’ under an artificially constrained view of probability theory and the use of the so-called likelihood ratio, in which multiple related hypotheses and pieces of evidence are squeezed into a single hypothesis variable and a single evidence variable. When the distinct relevant hypotheses and evidence are described properly in a causal model (a Bayesian network), the paradoxes vanish. In addition to the twins problem and poison paradox, we demonstrate this for the food tray example, the abuse paradox and the small town murder problem. Moreover, the resulting Bayesian networks provide a powerful framework for legal reasoning.

Effective Court Administration and Professionalism of Judges as Necessary Factors Safeguarding the Mother of Justice – The Right to a Fair Trial

One of the fundamental human rights and the rights of nations is the Right to a fair trial. A legal paradox is that immense violations of this right have been declared worldwide for many years despite the significance of this right and the fact that it is executed by the courts and judges themselves. Professionalism of a judge and a court as an institution is a prerequisite for effective execution of this right and at the same time the level of protection of the Right to a fair trial could be taken as a criterion for evaluation of the judicial systems. The modern concept of this right and thoughtful identification of its elements show not just the development of the legal systems but are indicators of legal culture of western civilization in administering of justice. The author raises the hypothesis that court administration and high professional standards of judges are the main prerequisites to preserve the Right to a fair trial. Court administration and judicial professional standards should preserve the main elements of the Right to a fair trial, and first of all “fairness” and “the independence and impartiality of the court”. The ability to ensure the proper implementation of the right to a fair trial in practice is one of the key qualitative criteria for assessing court performance. The scope of this article is to systemize the main original establishments of the Right to a fair trial and its elements, particularly the essential requirements for “fairness” and “the independence and impartiality of the court (judge)” from the point of view of court administration and professional standard of a judge. It is important to determine main requirements for the high judicial professional standard of a judge as a prerequisite for proper execution of the Right to a fair trial. The legal and ethical values that the Right to a fair trial grant internationally is best represented by the jurisprudence of the European Court of Human Rights (“ECtHR”). Therefore, the article is based on the main legal thoughts that are developed by the jurisprudence of this international court, using the systematic material on jurisprudence of ECtHR, comparative analyses and doctrinal support.

The Territory Paradox: the Basis of Statehood and International Norms as an Obstacle to the Protection of International Community Interests

The role of effectiveness as a criterion to determine the success of territorial unity or secession not only fails to settle tensions between some principles of international law, such as those of territorial integrity and self-determination, but also creates certain legal paradoxes. Those paradoxes are generated partly because some norms and interpretations remain excessively attached to territorial criteria, leading to a dissociation with a globalized world in which transnational actors operate and borders are practically eroded or ignored. A humanized approach that responds to both State and non-state challenges must be adopted to deal with those tensions and paradoxes, granting remedial independence in extreme cases in which it is the only way to protect from serious breaches of peremptory law, even when secession is not successfully achieved, thus justifying it; forbidding the legal effects of effective situations achieved in ways contrary to jus cogens; and permitting or even demanding protection from non-state abuses originating in foreign territories, such as those attributable to armed groups or transnational businesses. Keywords: territorial integrity; effectiveness; Statehood; non-state actors; human rights; jus cogens

The Emperor’s New Clothing: National Responses to “Undesirable and Unreturnable” Aliens under Asylum and Immigration Law

The “scandal” of foreign criminals whom our governments cannot send back to their own countries has become something of a tabloid obsession. Yet, while suspected or convicted of serious crimes or considered to pose a danger to society, such “undesirable and unreturnable” aliens equally often languish in an ambiguous and even dangerous state of protracted legal “limbo”, lacking a defined immigration status and attendant access to basic rights in the host State. In the absence of an agreed common framework for resolving this anomalous situation, how do individual States deal with the legal and policy paradox that is embodied by these purportedly “undesirable”, but also ultimately non-removable, aliens? This Special Issue offers a preliminary perspective on this contemporary concern by presenting eight specially commissioned pieces of new research. Each of the contributions examines a different national context where this issue has arisen in recent years, resulting in eight detailed country case studies covering Australia, Canada, France, Greece, India, the Netherlands, Turkey, and the United Kingdom. The aim is to produce a comparative understanding of national responses in this relatively diverse range of countries.

Law in the Air: A Prologue to the World of Legal Paradoxes

The paper is the introductory chapter of the book 'Paradoxes and Inconsistencies in Law' (edited by O. Perez and G. Teubner). The paper’s first section provides a general introduction to the world of paradoxes. The second section moves into the realm of law and explores the differences between legal, logical and semantical paradoxes. It also explores some of the key paradoxes of law. The paper’s final section describes the structure of the book and discusses the different contributions.