Legal Praxis Research Articles

The AI spectrum under the doctrine of necessity: Towards the flexibility of the future legal praxis

Society is rapidly changing into an implicitus one. The main factor leading to this societal transition is the integration of artificial intelligence (AI), influencing all aspects of anthropocentric legal order. The deep concern to safeguard fundamental human rights under unforeseeable circumstances threatening hypostasis, leads those who are involved in the legal praxis to reorganize the legal system to ensure its functional continuity. To this purpose, a reliable extra-legal tool, such as the doctrine of necessity, is proposed, to validate the issue of AI development that falls outside the purview of any legal process, though, being necessary for society prosperity.

Slavery, Freedom Suits, and Legal Praxis in the Ottoman Empire, ca. 1590–1710

AbstractBeginning with the story of the Muslim youth Mehmed bin Abdülcelil of Tunis, this article examines the plight of Ottoman subjects abducted and sold into slavery within the Ottoman Empire and their efforts to regain freedom through Ottoman courts. Freedom suits (hürriyet davaları) were common in the seventeenth-century Ottoman Empire, so much so that contemporary legal praxis manuals (sukuk) always provided examples of how to document them, but they have never been systematically studied for this period in which slave ownership was extremely widespread and the legality of enslavement depended solely on religion and subjecthood. Drawing on a sample of seventy-nine suits from greater Istanbul and eleven sukuk manuscripts, this article considers how the trade in the illegally enslaved was concealed by the immense traffic in licit captives and how the theoretical protections of Ottoman subjecthood clashed with the practical challenges of how to prove it, exposing the gap between slavery as legal institution and slaving in practice. Whereas the vast majority of freedom suits ended in rulings in favor of the victims, most of the illegally enslaved probably never managed to have their cases heard or were turned away for lack of evidence.

The False King Olaf and His Necklace of Letters

The False King Olaf and His Necklace of Letters

Incidence and characteristics of food-related criminal cases in Finland

Food fraud is an increasingly acknowledged problem that can cause unfair competition in the market, contribute to the grey economy, cause financial losses and threaten the health of consumers. Even so, little research exists on food-related criminal cases. The aim of this study was to characterize Finnish food-related criminal cases in order to improve understanding of the prevention of food-related crime. We investigated 127 cases resolved by the police, prosecutors, or district courts under the titles of food offence, health offence or marketing offence from 2008 to 2019. The analysis revealed that the incidence of cases was low and varied regionally, which may be due to varying abilities to detect cases and differences in reporting them to the police. The most common non-compliances in the cases we analysed were unapproved or unregistered premises or activities (43.3%), false or misleading information provided on food products (39.4%), and insufficient or incorrect, false or misleading documents (31.5%). Safety hazards were associated with 45.7% of cases, while 2.4% involved verifiable instances of illness, which demonstrates that preventing food crime is important for consumer safety. The majority of cases (51.2%) were detected during food control inspections, highlighting the importance of performing inspections on-site. In addition, tip-offs to food control authorities about possible food-related crime (29.1% of cases) were an important mode of detection and could possibly be even more important if Finland were to have a centralized anonymous whistleblowing system. In total, 59.8% of cases led to a conviction or a sanction, and the most common type of punishment was a fine. Nevertheless, the fines tended to be rather low, and the proceeds of crime were recovered in only a few cases. More training for food control inspectors on the detection of food-related crime, harmonized reporting practices, and increased legal praxis throughout the country could improve the detection and prevention of food crime in the future. • Food-related crime is a regular but rarely reported occurrence in Finland. • Food control inspections and tip-offs are important in case detection. • A safety hazard was commonly associated with the cases. • Punishments were rather lenient and the proceeds of crime were seldom reclaimed. • More training in case detection and harmonized practices in reporting are needed.

Rikosten yksiköinnin ennakoitavuus vainoamista (RL 25:7 a) koskevassa oikeuskäytännössä

This article covers same-offence-identification as singular or multiple offences (same-offence- identification) pertaining to stalking. Said doctrine is a subbranch of the concurrence of offences and there are no provisions in the law concerning this phenomenon. Instead, it falls onto the courts to decide whether a conduct is to be considered a singular or multiple breach(es) of a certain criminalization. This decision is steered by legal praxis, legal literature and the so called “natural point of view” and the criteria that compose it, which have been established in legal praxis. Weighting of said criteria varies depending on the offence in question and especially its wording. Occasionally, this resolution can have a significant influence on determining the severity of punishment presently or in the future as well as time-barring of the right to bring charges. Thus, the consideration of these viable consequences already in the phase of same-offence-identification can be deemed an interesting prospect. The focus of this article is on the analysis of same-offence- identification pertaining to stalking (CCoF 25:7 a) in light of inter alia the principles of legality and equality within criminal law; if these decisions can directly influence the determining of punishment either in the present or in the future, it is paramount that said decisions are made foreseeably and justly. Hence, the main research material comprises decisions made by the courts of appeal of Helsinki, Turku and Vaasa in cases of suspected stalking between 2015 and 2019. A scrutiny of this material indicates that same-offence-identification is incoherent when convicting individuals of stalking. Worryingly, same-offence-identification practices appear haphazard and seem to follow initial identifications made by prosecutors. To harmonize these decisions, it is proposed that said rulings be reasoned more regularly.

Konfiskace uměleckých děl fyzických osob v době nesvobody

This paper presents an overview of the legal regulation and practice related to the confiscation of works of art in the so called “time of oppression”, which is a legal term for a historical period from 30.9.1938 to 4.5.1945 in the territory of the recent Czech Republic. Since the aim of the paper is to serve as a handout helping to understand the historical context by applying the restitutional statute No. 212/2000 Sb., it shows no detailed case study, but concentrates on an instructional overview. After a brief introduction, which explains the aim of the paper and defines its scope, the time of oppression is divided into two phases – the so called Second Republic and the Protectorate of Bohemia and Moravia. There is a short characterism of the respective phase and an indicative timeline describing the Era of Protectorate. The following parts deal with the legal regulation and confiscation praxis in more detail. The era of the so called Second Republic is by the nature of things shorter; however, the roots of the oppression practice are well illustrated. On the other hand, the description of the protectorate era required it to be subdivided into three parts: i) an introduction of the basic legal framework; ii) institutions dealing with confiscation; and iii) the disposition of confiscated goods, taking into account the museum practice.

Comparación constitucional como oportunidad para el proceso constitucional chileno

Chile is currently undergoing a constituent process. This process, formally initiated through a referendum in which the vote for a new constitution won by an overwhelming majority, has created enormous expectations of political and social transformation. However, achieving that goal will depend less on the constitution as such and more on the legal praxis and political process developing under its influence. In that regard, constitutional comparison and a methodological openness towards social sciences could be important resources when analyzing how new constitutions have managed to positively influence institutional practices capable of reconfiguring the conditions of existence of political communities.

Opšta nedelotvornost žalbe na rešenje o zadržavanju - konačni rezultati istraživanja

This paper will present the results of the completed research which relates to the issue of the effectiveness of the appeal against the custody order pursuant to Article 294 of the Serbian Criminal Procedure Code. The research which the paper reports on was conducted on the entire territory of the Republic of Serbia, encompassed all Basic and Higher Courts, as well as a survey of more than 300 lawyers. Even though most colleagues will not be surprised by the results, the research has proven to be useful in multiple ways, primarily because it factually and comprehensively demonstrates the concrete situation regarding the effectiveness of the legal remedy in question. This research documents what was the general (but not empirically tested) impression in legal praxis.

In defence of a constructivist conception of legal interpretation

This work aims at articulating a constructivist or value-dependent conception of legal interpretation and at arguing in defence of its superiority against rival conceptions. Legal interpretation is an activity that implies participating in legal praxis. Thus, it is committed to those ends and values that give meaning to it, or in other words, it is committed to improving such praxis. Accordingly, to answer the question of how to interpret law, we must first answer the question of what makes law valuable. To assess whether a certain interpretation is better or worse than alternatives depends precisely on how it contributes to maximizing those principles making us consider law valuable. Legal argumentation for the purposes of legal interpretation has a necessary moral and political component. Nonetheless, this does not imply disregarding the peculiarities of legal argumentation, particularly the relevance of authoritative elements.

Love as Justice

ABSTRACT The law, serving as a codification of the commitments and values of “White space,” often treats love and justice as separable and separate values, experiences, and institutions. Black love, on the contrary, is bound up with and, even, identified with justice. This inextricability is painted masterfully in the interstices of Zora Neale Hurston's, Their Eyes Were Watching God. The story, widely framed as a woman's journey to autonomy and love, is just as much the story of her search for justice. This article uses Hurston's narrative of love and justice, Paulo Freire's critical pedagogy of humanization, and law to illustrate the implications of Black love for engaging legal justice in White space. It concludes that liberation for Black people demands humanizing legal praxis.

Are you still my wife? Conversion to Christianity and its legal effects on pre-existing marriages and their offspring in late medieval Castile (1480–1502)

This article examines the legal and sociological consequences of conversion to Christianity by Muslim and Jewish couples in medieval Castile at the end of the fifteenth century, focusing on the application of legal prescription in legal praxis. The material summarized and analysed sheds light on how Jews and Muslims dealt with conversion to Christianity and the problems it brought to daily life. Broadening the discussion, this article looks at other conversions to Judaism and Islam in order to establish a comparative perspective and show the problems of legal miscegenation at the end of the fifteenth century in Castile. The paper is based on a dozen royal decrees granted by the Royal Council in response to petitions and preserved in the Archivo General of Simancas, as well as various Inquisitorial records. It answers three basic questions: what happens when only one spouse in the couple has converted; who should educate the children; and what happens when the marriage has been contracted but has not been consummated?

Toward the Implementation of Intersectionality in the European Multilevel Legal Praxis: B. S. v. Spain

This article identifies the factors that contribute to the successful implementation of intersectionality in European multilevel legal praxis through the analysis of the case B.S. v. Spain. Combining critical legal analysis of the main judicial documents with qualitative methodology from political science based on in-depth interviews with key actors involved in the case, we uncover the obstacles and opportunities existing at the national and supra-national levels for the implementation of intersectionality. We decipher the factors contributing to the exceptional success of this case through the conjoint analysis of macro, meso, and micro levels. Our analysis shows that a combination of the legal provisions, paradigms and structures, the roles of the different actors involved, and the applicant's subjective position made it possible to put intersectionality in practice. This study provides novel empirical evidence that contributes to advancing the theoretical debate about intersectionality implementation in the multilevel European context.

Introduction: The cultural and material worlds of mining in early modern Europe

AbstractThis special issue is dedicated to the cultural values and impacts of the early modern mining industry and some of the enterprises and practices that surrounded them. The contributions enquire into how mining and metallurgy became a key sector in early modern European society, not only in terms of economic prosperity with its utilitarian connotations, but as a sociocultural phenomenon, whose materials and products affected, or even enabled, many areas of life and rulership. The authors' contributions focus on places, materials, and processes, and assess how historical actors engaged with metallic materials, both under and above the ground. They analyse human engagement with mined materials not simply from an economic perspective, but also as an administrative and legal praxis, a technological challenge, an environmental problem, a spiritual engagement, and an affective experience. This approach affords a broader perspective which expands the history of mining beyond the narrow sense of a history of material extraction, one that crosses the borders of the European mining regions and takes activities in urban hubs and on the sea into consideration as well.

From Homophony to Polyphony: Law and Music a Consonant Duet for Future Legal Thinking and Practice?

This paper examines the extent to which the law should mirror music as a discipline that embraces the value of community in the diverse sense in order to accommodate difference. The paper advocates that the law should shift from privileging community in the unified, singular sense in order to champion community in the collective sense, so that the law may genuinely support the inclusion of a diverse range of identities.To this end, the paper emphasises the importance for the law to embed the value of ‘community’ in the Derridean sense into its approach to embrace the innate differences between identities. The paper argues that at present the operation of ‘community’ in the Derridean sense is prevented by its discordant relationship with the formalist legal approach. This approach privileges the closure of the law above accommodating the values of diversity and possibility, which are central to the Derridean conception of ‘community’. Subsequently, the paper supports Ramshaw’s thesis that a reciprocal relationship between the law and music should be established in order to facilitate a shift from dominant legal thinking and praxis in order to promote ‘community’ in the Derridean sense. This paper concludes by supporting music as a powerful instrument to emancipate the law from its formalist tendencies, and ultimately to enable the value of ‘community’ in the Derridean sense to be harmoniously embedded into future legal thinking.

Curriculum Development in the Field of Law: Facing the New Era of Industrial Revolution 4.0

New paradigm about lawyer has shifted legal profession education in this millennial era. Thus scholars need to orientate legal profession education in order to graduates of law school in Indonesia not only to study law substance but also the process law implement digitally to the change in technology industry 4.0 This article starts at understanding of law science characteristics, the evolution of teaching method, curriculum designing in law school in Indonesia, new paradigm in law practice technology in digital era. The digital era means the transition of traditional industries towards economy era which based on information computerized. Technology revolution which is initialled with internet development and working-ethos computer evolution, thus this revolution reinforced all aspects into digital era. Furthermore, it affects to legal profession which must be line with development flow in digital era. Legal profession is legal praxis community which emerged from law school, for that issue education process of legal profession must be oriented to the learning process.

Alcohol intoxicated witnesses' interpretation of social behavior in intimate partner violence

SummaryAlcohol intoxication affects social information processing, though research is scarce regarding how alcohol affected eyewitnesses' perception of social interaction within an applied forensic context. In the present study, the effects of alcohol intoxication on eyewitnesses' perception of interaction in intimate partner violence (IPV) were investigated. The participants (n = 152) were randomized to an experimental (alcohol) or control group (juice). After consumption, they viewed a filmed IPV scenario where both interacting parties were confrontational. Afterwards, they rated the involved parties' behavior. Several behaviors were perceived in a similar manner by intoxicated and sober participants, but intoxicated participants perceived both parties' attacking behaviors and some of the man's prosocial behaviors differently than sober participants. Hence, alcohol affected some, but not all, kinds of social behaviors investigated in the present study. This would be of interest to legal praxis and to future studies on intoxicated witnesses to interpersonal violence.

A nulidade absoluta pela não intervenção do representante do Ministério Público em atos essenciais da ação penal pública

A realização de atos essenciais no processo penal, precipuamente de audiências de instrução criminal, sem a participação do Ministério Público, viola o sistema acusatório. Tal constatação demanda da intelligentsia uma revisitação do tema [espécies dos atos jurídicos processuais penais (estruturais e acessórios) e seus efeitos], para corrigir o problema da inobservância do paradigma do sistema acusatório, que tem provocado precedentes jurisprudenciais controversos e caóticos, sendo nítido o paradoxo entre a ciência e a práxis jurídica. O propósito é reexaminar o tema a partir do cross-examination, sendo primordial a percepção e a classificação adequadas das espécies dos atos jurídicos processuais, com uso de premissa que distinga ato essencial, de ato acessório, e seus efeitos. Este trabalho neutraliza a controvérsia da ausência do Ministério Público em audiência ser ato nulo ou anulável, aprimorando o estado da arte com o reconhecimento de que a inquirição direta das testemunhas é ato essencial e sua ausência acarreta nulidade absoluta. Os atos essenciais não podem ser realizados sem seu autor e tratá-los como se fossem secundários provoca error in procedendo. O pas de nullité sans grief somente se aplica aos atos acessórios. O modelo epistemológico proposto funciona como premissa fundamental de interpretação do tema, contribuindo com o avanço da grande área.

Occupying Legality: The Subversive Use of Law in Latin American Occupation Movements

The social movement tactic of occupying land, factories, and other workplaces has regained popularity in Latin America over the past decade. These occupations have garnered international attention due to the direct confrontation with neoliberalism that they embody, whilst less attention has been drawn to the particular use of law that underpins this confrontation. Through an examination of the use of law by the Landless Peasants' Movement in Bolivia and by the factory occupation movement in Argentina, this paper explores how these occupation movements have combined both an eschewal and embrace of law in what can be understood as a creative ‘radical legal praxis’. The paper sketches the contours of what a theorisation of this approach might look like and suggests that this particular engagement with law challenges traditional understandings of occupation movements and contains important possibilities for emancipatory resistance to neoliberalism.

El proceso de revisión civil en Cuba: despejando la penumbra en torno a su tramitación y tres causales

Propósito: ofrecer algunas reflxiones acerca de la necesidad de perfeccionar la concepción y tramitación de la revisión civil en Cuba, especialmente en lo relativo a la regulación de tres de sus causales que, a la vez, son de dependencia funcional penal, debido a las difiultades de la práctica jurídica a la hora de lograr su admisión, tramitación y solución. Descripción: se ofrecerán criterios de la doctrina procesal sobre la construcción jurídica de la revisión, en relación con si se trata de un recurso, un procedimiento o un verdadero proceso, con lo que se aprecia falta de unanimidad, situación que ha trascendido al orden legislativo mundial. Se realiza un análisis comparativo de la revisión en los ámbitos procesales cubanos, relativo a las resoluciones judiciales contra las que procede, tras lo cual se evidencia falta de uniformidad de criterios por la práctica judicial del máximo foro. Punto de vista: se dan a conocer propuestas concretas de modifiación de ley para su perfeccionamiento, que contribuyen al mejor ejercicio de la praxis jurídica. Conclusión: la revisión es un proceso que guarda indudable relación con el proceso anterior del cual proviene la resolución firme objeto de ella, encaminado a salvaguardar derechos, sirviendo como ultima ratio de realización de la justicia como valor y fin del Derecho.

Crítica e contracrítica dos movimentos de crítica à dogmática jurídica: ensaio sobre as transições da escola do direito livre e do movimento do direito alternativo em homenagem a Amilton Bueno de Carvalho

O ensaio problematiza a transição histórica que ocorreu, a partir de meados dos anos 90 no Brasil, do Movimento do Direito Alternativo ao garantismo jurídico-penal, desde o marco da criminologia crítica. A hipótese é a de que a adesão ao garantismo representou uma resposta à crítica promovida contra o movimento. São utilizadas as experiências históricas de Magnaud, Kantorowicz e Neumann como recursos interpretativos para compreender as transições e os sentidos da crítica: crítica negativa aos fundamentos e aos pressupostos do positivismo dogmático; crítica positiva de construção de uma práxis jurídica emancipatória.