Legal Scholars Research Articles

Apologies, Remorse, and Amends: Empirical Legal Studies Across Domains and Disciplines

The role of apologies in law is offered as an example of a topic that cuts across legal fields, and one that is quintessentially interdisciplinary. Because apologies are an often-desired response in the wake of a wrongful act, they can be significant in many legal settings. Apologies or the lack thereof affect attributions of responsibility and blame, provide information, and alter relationships. Apologies play a role in motivating or forestalling legal action, shape settlement in civilcases, influence punishment in criminal cases, provide alternate or complementary means of accountability, and impact relations among parties to conflict from the interpersonal to the geopolitical. An understanding of apologies is enriched by research conducted by legal scholars, sociologists and psychologists, economists and political scientists, historians and linguists, and criminologists, using methods drawn from each of these fields. This range of empirical research is necessary to successfully develop a better understanding of the desire for, effects of, and limits of apologies across varied legal contexts and the implications for client counseling and legal strategy, for legal reform and systems design, for political decision making, and for procedural, restorative, and transitional justice.

Computational Legal Studies Comes of Age

Computational analysis techniques are transforming empirical legal scholarship. Two paradigms have emerged: law-as-code, which seeks to represent legal rules in a logical, executable format; and law-as-data, which leverages quantitative analysis of legal texts to reveal patterns and insights. This article surveys these approaches, emphasizing recent developments in large language models and generative artificial intelligence (AI). Law-as-code systems have enabled applications from tax preparation software to smart contracts, but realizing the vision of fully computational law has proven challenging. Law-as-data techniques like natural language processing and machine learning have charted the semantic relationship between courts and illuminated changes in judicial culture. Generative models showcase AI's explosive progress, with impressive feats like passing the U.S. bar example, but they also highlight limitations like factual inaccuracy and interpretability issues. Hybrid approaches integrating computational law, data science, and AI offer a promising research direction. As these tools spread, legal scholars can analyze more legal data than ever before, but they must remain cognizant of challenges like biased or low-quality data and linguistic/cultural limitations. Used judiciously alongside traditional methods, computational analysis has the potential to revolutionize empirical legal studies.

Empirical Foundation of Normative Arguments in Legal Reasoning

Empirical legal studies are often challenged by traditional doctrinal legal scholars as irrelevant to normative legal reasoning. This article explores, through the lens of jurisprudence and by drawing on dozens of empirical works, the junction between empirical facts and normative arguments. Both teleological and consequential arguments, in one of their premises, employ “difference-making facts” which identify the causal effects of certain legal measures as reasons for normative claims. Empirical works make causal inferences and their findings thus constitute an essential part of teleological and consequential arguments, which are prevalent in normative legal reasoning. All causal-identifying empirical findings can be framed as the required empirical premise in teleological and consequential arguments. Finally, although some classical canons of legal interpretation, such as textual and systemic arguments, appear not to take the form of teleological or consequential arguments, the use of these specific legal arguments must nonetheless be justified by teleological or consequential arguments at the meta-level. Thus, normative legal reasoning, one way or another, must have empirical foundations.

Institutionalising women’s experiences in law: Possibilities and pitfalls of parliamentary gender audit committees

Feminist legal scholars have long recognised that law is gendered, being a manifestation of power that often works to the detriment of women. This need not be the case. This article tests the capacity of law to make a material difference on women’s lives through parliamentary auditing. The arguments springboard from an innovation emerging in Tasmania in 2022: a Gender and Equality Audit Committee in the Tasmanian Legislative Council. Alongside the Australian Capital Territory’s Standing Committee on the Economy and Gender and Economic Equality, these Australian examples provide a framework to interrogate the possibilities for inclusive, gendered legislative scrutiny.

Prohibitions in criminal law

The article is devoted to the analysis of prohibitions in criminal law (criminal law prohibitions). Despite the fact that the issue of criminal law prohibitions is becoming increasingly relevant, it still remains poorly researched and controversial. This paper lays down the methodological foundations for the study of prohibitions in criminal law. In particular: 1) the author distinguishes between the concepts of «criminal law», «criminal legislation» and «criminal code»; 2) the author examines national criminal law through the prism of the public law branch of Ukraine (analyses certain aspects of criminal law regulation and criminal law relations; expresses the author’s position regarding the powers of entities representing the State in criminal law relations) 3) the author defines the concept of «criminal law provision», identifies its features, studies its structure, and also identifies the criteria for its classification. Taking into account the conclusions on the above issues, the author analyses prohibitions in the criminal law of Ukraine: the author proposes a definition of this term, identifies its features, makes its classification, and studies the legal consequences of violation of domestic criminal law prohibitions. The scientific work also contains the results of a study of foreign experience. Thus, the criminal legislation of the former USSR republics was subjected to a thorough study. The author notes that there are two models of understanding the concept of «prohibition in criminal law». In writing this article, the author used scientific works of Ukrainian and foreign legal scholars, as well as domestic and foreign regulatory legal acts. For a more detailed understanding of the subject matter of the study, the article is illustrated with three author’s diagrams and one map. The research work is a multidimensional analysis of prohibitions in criminal law, which allows for further development of this topic.

Scope of Same-sex Marriages in India

This paper thoroughly examines the legal and socio-cultural landscapes surrounding same-sex marriage, delving into both domestic and international perspectives. Through a meticulous review of landmark legal cases, including Navtej Singh Johar v. Union of India and Obergefell v. Hodges, the author elucidates the evolution of jurisprudence concerning LGBTQ+ rights and marriage equality. Furthermore, the interpretation of existing laws within the context of same-sex marriages is scrutinised, highlighting the judicial reasoning and legal arguments that have shaped legal frameworks worldwide. Moreover, this study incorporates insights from a survey conducted by the author to gauge public attitudes towards same-sex marriage. Integrating empirical data with legal analysis generates a nuanced understanding of societal perceptions and challenges. Societal attitudes and stigma, religious perspectives, and the advocacy efforts of LGBTQ+ rights movements are critically examined, shedding light on the complexities inherent in navigating cultural norms and values. Ultimately, this paper underscores the imperative of advancing legal reforms and fostering societal acceptance to ensure the full recognition and protection of the rights of LGBTQ+ individuals. By synthesising legal scholarship, empirical research, and socio-cultural analysis, this study contributes to the ongoing discourse on same-sex marriage. It lays the groundwork for future research and policy initiatives in this vital human rights and social justice area.

The Right to Mental Autonomy

A number of moral philosophers and legal scholars have now recognized that we possess a natural, or moral, right to mental autonomy. This right is standardly characterized as our right against significant, nonconsensual interference with our minds. However, the precise scope of this right remains under-theorized: what makes some ways of influencing someone’s thinking—rational argumentation, say—permissible, but other ways—pharmacological manipulation—impermissible? Here I argue that the right to mental autonomy should be analyzed as the right to form attitudes in light of reasons. Once understood this way, we can see how this right protects us against all “nonrational” interventions on our thinking—including, but not limited to, nonconsensual neurosurgery, pharmacological manipulations, science fiction mind control, subliminal messaging, and non-reason-giving advertising or nudging. Rather, the only fully permissible ways to seek to influence someone’s thinking are through methods that seek to engage their rational faculties. This result, I claim, accords with our moral intuitions concerning the matter.  

F. A. Mann – Výjimečná osobnost a jeho odkaz

The subject of this paper is a description and analysis of the life and work of the extraor¬dinary personality of the exiled lawyer F. A. Mann who became an extraordinary expert in public international law, private international law, comparative law and commercial law, who, moreover, laid the foundations of monetary law as a special subject of legal doctrine. As the famous English judge, Lord Denning, would say: “Mann contributed more than anyone else to the development the science of law in our time.” Born in a German Jewish family, he studied and began an academic career in Berlin. He was then forced to flee to Great Britain, where he studied law again and became a renowned solicitor and legal scholar. His career was crowned after World War II, when he became a leading figure in international legal organizations, leaving a far-reaching influence in English and international jurisprudence. In the 1960s and 1970s, he lectured at German universities in particular, where he received the highest honours, and also influenced German jurisprudence.

The Role of Black Christian Beliefs in the Civil Rights Movement: A Paradigm for a Better Understanding of Religious Freedom

This paper builds upon and extends Christian and legal scholarship on the civil rights movement by illuminating a climate of religious freedom that served as a catalyst for and was integral to the success of the spirited activism of the civil rights movement. To date, scholars have not extensively considered how the expansion of religious freedom in church and state jurisprudence both directly and indirectly created a climate that contributed to the success of the CRM, and how advancements in civil rights impacted the broader revolution occurring in constitutional rights. The climate of religious freedom included court support for evangelizing in residentially exclusive areas, exemptions for conscientious opposers from participating in oath swearing and other ceremonies, and exemptions from other general laws that unduly inhibited the free exercise of religious rights.

Revisiting the Inevitability of Punishment for Criminal Offense: An Ethical Understanding of the Problem

The author presents a critical examination and justification for his dissenting stance toward the thesis proposed by I.M. Ragimov, A.N. Savenkov, and H.D. Alikperov in their article titled “Etiology of Individual Criminal Behavior: A Different Perspective” (State and Law, 2023;(9):112-125. DOI: 10.31857/S102694520027657-3). This thesis posits that the perpetrator inevitably faces a lifetime of punishment for the crime committed. However, while the author acknowledges the value of the aforementioned article in its entirety, along with its other propositions and conclusions, he calls on fellow legal scholars to engage in a wide-ranging discourse on these matters.

Restoration/ Rehabilitation of Prestige in Islamic Sharia and Afghan Statutory Laws

Aim: Human dignity or being human in term of his/her soul, property, honor, status need to be respected. Unfortunately, sometimes it has been witnessed that human being is confronting outrage, accusation, abuse, humiliation, etc., that affects their soul, property, honor and status. These all acts are considered illegal and prohibited in Holy Quran, Hadiths and Jurisprudence. If a person is exposed to such disgraceful activities, his/her status has to be rehabilitated and restored. Both material and intellectual remedies are suggested and approved by Law, that scholars know it as General Rehabilitation/ Restoration of Prestige.
 Methods: The doctrinal research methodology and a descriptive, explanatory, and analytical research approaches were used in this study. It is worth mentioning that this study was entirely based on library sources. The sources are textbooks, scholarly published and unpublished journal articles, law reports, and online websites related to the research area.
 Results: This study found that most of the Afghan academicians and legal scholars believe that if someone’s prestige is affected due to a crime committed by others or itself, in both situation one’s prestige has to be recovered. That Islamic law indicates it as repentance and remorse though substantive law suggest two ways i.e. statutory rehabilitation/restoration of prestige and judicial rehabilitation/restoration of prestige.
 Conclusion: Human dignity and sympathy call for respecting others honor, prestige and privilege. If someone’s prestige and dignity is violated due to a cruel act, the perpetrator has to be convicted by court, that the victim’s prestige, privilege, and status is renovated and restored.
 Recommendations: As many people in Afghanistan are illiterate and do not know the importance of restoration of prestige, the judges should declare the principle of both law and court-based rehabilitation with the time lapse within their verdict and criminals will know the importance in the future.

A börtönlelkészi szolgálat alapjogi vetülete – a jogdogmatikán innen és túl

Aim: This study aims to examine the ministry of prison chaplains in the context of fundamental rights, in particular freedom of thought, conscience and religion.Methodology: The analysis uses the legal doctrinal approach of fundamental rights as its primary method of research. This is complemented by a public law context going back to the regime change and an international perspective, which are common tools of comparative method of legal scholarship and provide reference points in the analysis.Findings: Prison chaplaincy is linked to both the individual and collective aspects of religious freedom, and there is both a rights and obligations side to this fundamental rights relationship. The paper will discuss the fundamental rights of prison chaplaincy, including the right of prisoners to individual and collective religious practice, as a subset of freedom of conscience and religion in the period since the change of regime. Finally, the paper briefly reflects on the case law of the European Court of Human Rights on the exercise of religion by prisoners.Value: The study contributes to the complex issue of religion and reintegration through an analysis of constitutional law.

Victim Care or Defendant Rights? Assessing Public Attitudes towards Special Measures Designed to Support Vulnerable Witnesses at Trial

The introduction of ‘special measures’ within England and Wales (i.e., provisions for vulnerable and intimidated witnesses at court) marked a significant change in legal tradition and trial procedures such that victim and witness care was repositioned as a primary concern alongside the longstanding rights afforded to defendants. As public perceptions towards the legitimacy of criminal justice procedure remain a key concern among legal scholars and social scientists, this study aimed to examine individual differences in attitudes held towards the rights afforded to complainants and defendants within English courts. Adopting a cross-sectional study design, 114 UK adults were recruited to take part in an online survey. Questions centered around the importance of providing adequate witness care whilst protecting defendants’ rights to a fair trial. A new measurement tool was developed to allow these attitudes to be systematically assessed and understood, termed the Attitudes Towards Vulnerable Victims Scale (ATVVS). Results indicate that respondent age, gender, level of education, and belief in a just world are important determinants of public support for the use of special measures at trial as well as perceptions towards complainant and defendants’ rights. Taken together, findings indicate that misconceptions about vulnerable victims appear to underlie a lack of support for the use of special measures.

On the admissibility of usucaption of a non-separated premises, as a new perspective on the institution of usucaption of premises

The purpose of the article is to consider the possibility of acquiring a separate ownership right to an undivided premise or a part of previously divided premise through adverse possession (usucaption). This subject demands a fresh perspective, given the consistent unified stance of both the judiciary and legal scholars, who have traditionally considered such adverse possession as inadmissible. The examination gains particular significance in light of the approaching 30th anniversary of the enactment of the Act of 24 June 1994 on the ownership of premises, as this may result in an increase in litigation related to adverse possession claims concerning entire premises or their parts. Contrary to the long-standing established position of both jurisprudence and legal doctrine, the article demonstrates that acquiring separate ownership rights to previously undivided premises, as well as to parts of previously divided premises (such as rooms, auxiliary spaces, or ancillary facilities), is indeed feasible through usucaption. In both cases, compliance with the requirement of independence as defined in Art. 2 sec. 2 of the Act on the ownership of premises is crucial since only independent premises may be the subject of separate ownership. The argument presented in the article strongly advocate for the possibility of providing legal protection to possessors of undivided premises or parts of divided premises and for regularizing long-standing factual situations that do not align with the current legal status, which is the fundamental essence of adverse possession.

The Horizontal Effect: Conceptualisation and Application of Constitutional Rights in Private Law

Private law has traditionally followed a separate mindset of rights, which is not necessarily related to the constitution. With the rise of constitutionalism in the world, thinking about constitutionalism and fundamental rights has spilt over into private law. The constitutionalisation of private law (or the horizontal effect of constitutional rights on relations between private actors) is one of the important topics that attract scholarly attention around the world.
 It can be seen that the modern history of the horizontal effect of constitutional rights has more than 60 years of development. However, in Vietnam, the topic of the effect of constitutional rights in private law has just been raised recently among legal scholars. This article serves as a development of the emerging discussion on the horizontal effect in Vietnam by providing a general conceptualisation and a brief history of the horizontal effect of constitutional rights in the world. The article also proposes the identification of horizontal effect paradigms in countries/jurisdictions and suggests implications of the horizontal effect for Vietnam.
  

Current Trends in the use of International Instruments in Ethiopian Court Decisions: Potential Lessons for Comparative Constitutional Law

Comparative law in general and comparative constitutional law in particular is a thriving field of legal scholarship in many states. The basic idea of investigating and studying the norms and institutions of other societies has been used to draw good practices and lessons that can assist in resolving contemporary political, social and legal problems in a particular society.  While it is true that the use of comparative law in domestic jurisdictions should be socially and culturally grounded, it has been instrumental for developing optimal normative standards in many states. This includes an increasing academic interest to understand the normative and institutional challenges of different polities in order to entrench constitutional democracy and enhance the protection of fundamental rights. Nevertheless, there is also a significant misconception and overstated criticism on the use of comparative law by many scholars. This is all the more evident when it comes to the legal practice in Ethiopia. In this article, I analyze the different arguments presented for and against the use of the comparative method, and argue that there is a continued relevance of comparative constitutional law in Ethiopian legal practice. The fledgling jurisprudence and growing reliance of Ethiopian courts on international human rights law in some of their cases is testament to the continued relevance of international and comparative law in Ethiopia.

The Legal Industry of the Future and Teaching English to Law Students

In many countries of the world, the legal industry is undergoing profound transformations. The changes concern the way lawyers design their products and deliver services to clients. The providers of legal services have to respond to the «more for less» challenge.The article deals with the impact of technology on the legal profession. Analysing the present-day trends on the market, the forecasts made by legal scholars and law practitioners, the author describes the law firm of the future. Based on the study of the set of skills required of lawyers today, the author gives recommendations on how to prepare law-students to work in a constantly changing environment.

Sądowe zniesienie wspólności autorskich praw majątkowych jako postępowanie wyłączone spod kognicji sądów własności intelektualnej. Studium przypadku

The article is of a scientific and research nature and presents the problem of a possible cancellation of joint ownership of the copyright in non-litigious proceedings during litigation between the same parties concerning the infringement of copyright to an audiovisual work. In connection with the doctrinal dispute regarding the cancellation of commonality of copyright, the authors present arguments in favour for such a possibility in light of the provisions of both copyright law and civil law, and they discuss the procedural provisions related to such cancellation. An important aspect of the problem addressed in this paper is also the impact of the proceedings for the cancellation of commonality of copyright on the ongoing litigation proceedings between the same parties concerning the infringement of the author’s economic rights. As a result of the analysis of the current legal status, taking into account the events of a past court case, the authors present conclusions of the law as it stands with regard to the need for changes in civil procedure – the proceedings in intellectual property cases. It should be emphasized that the addressed research problem concerning the mutual relation between the substantive law provisions and the civil procedure in the scope of cancellation of commonality of the author’s economic rights has not hitherto been described by legal scholars and commentators.

Evolution of the State-Legal Foundations of the Soviet Agrarian System in the 20s of the XX Century

   Introduction. The history of the Soviet state law is of great interest to the modern researchers. A number of aspects of the New Economic Policy development and implementation in Russia are presented in the works of historical, economic and political science scholars. However, in our opinion, the number of research referring to the 20s of the XX century conducted by the legal science scholars is definitely not enough. The article investigates the evolution of the state-legal foundations of the Soviet agrarian system as reflected in the USSR Constitution of 1924, the RSFSR Constitution of 1925, the RSFSR Land Code of 1922, the USSR General Principles of Land Use and Land Management of 1928, and in a number of decrees and other normative legal acts.   The relevance of this topic is induced by the theoretical and practical significance of the legal regulation of the agrarian sphere of the society and the reform of the agrarian policy of the modern Russia.   On the one hand, the relevance of the topic lies in the need to study the transitional state of the Soviet agrarian legislation, since, according to V. I. Lenin, the New Economic Policy (NEP) implied “transition from the civil war to civil peace”. On the other hand, in the late 20s of the XX century the Soviet leadership had abandoned many of the NEP legislation principles. However, six decades later they were successfully revived and developed in the People's Republic of China during the economic reform.   The aim of this study is to reveal the evolution features of the Soviet agrarian system state-legal foundations of the 20s of the XX century.   Materials and Methods. The research methodology comprises the general scientific and specific juridical methods, including the historical-legal and legalistic (dogmatic) methods. Due to the rapidly changing attitude towards these methods in the scientific community, the priority in the research has been given to the modern sources. The authors' concept statements have been analysed, which, in synthesis with the authors' empirical background, made it possible to formulate a number of new provisions.   Results. The main acts that had legally formalized the state-legal foundations of the Soviet agrarian system in the 20s of the XX century were studied. The huge number of the agricultural laws is explained by the decision of the Soviet party and state leadership of the early 20s to start the recovery of economics with the agrarian sector — the backbone of the national economy of that period. The features of the NEP are elucidated not only as the change of the economic policy, but as the integrated legal policy, being a combination of the public and private law regulation upon absolute predominance of the public principles. It has been substantiated that transition to the NEP entailed the abolishment of the agrarian laws of the times of “war communism” and return to the principles of the peasant Mandate of 1917 — the most important element of the Decree on Land. Deep controversy of the agricultural legislation of the NEP period has been established, which in no way should be defined as a time of abandoning the concept and practice of the collectivization of agriculture. The party and state leadership continued to consider the individual peasant land use as having no economical prospect and dangerous for building socialism.   Discussion and Conclusion. The evolution features and distinctions of the Soviet agrarian system state-legal foundations of the 20s of the XX century have been revealed. In normative legal acts and party-state documents of the studied period, the preference continued to be given to the collective farms with the various degree of land and means of production collectivization. Communes and the state-owned agricultural enterprises, sovkhozs (Soviet farms), were considered the most desirable farms, as the ones most closely corresponding to the socialist ideal. The agricultural cooperation, whichhighest form were the kolkhozs (collective farms), was also appreciated by the authorities.   The theoretical significance of the conducted research lies in the fact that the state-legal foundations of the socialist agrarian system had been set in the studied period, when the policy of collectivization and public agriculture was stipulated in the Soviet legislation, the rules and norms for creation, organization and operation of the various forms of collective farms were developed, wherein the agricultural commune was considered the form closest to the socialist ideals.   Taking into account all the above, further investigation of the process of developing the model Charters of communes, artels and partnerships for joint cultivation of land seems a forward-looking objective.

Philosopher of Law N.N. Alekseev about Values in Law

   Introduction. The contribution of the famous Russian philosopher and legal scholar N. N. Alekseev to the doctrine of the values in law is studied based on his monograph “Fundamentals of the Philosophy of Law”. It is emphasised that, even though the interest (especially in recent years) to the theoretical heritage of N. N. Alekseev has increased, the analysis of the methodology of his approach to understanding the legal axiology in combination with the scientific, metaphysical and religious definitions is still required. N. N. Alekseev's philosophy of law plays a significant role in strengthening the legal values in Russia and affirming the legal culture, legitimacy and legal order. The aim of present research is to analyse N. N. Alekseev's philosophical and legal concepts concerning the values in law, to determine the methodology of his approach to understanding the legal axiology in combination with the scientific, metaphysical and religious views and to prove the prognostic importance of his original concept.   Materials and Methods. The research material comprised the results of the analysis of the theoretical provisions of N. N. Alekseev, more specifically the analysis of the chapter of the book “Fundamentals of the Philosophy of Law” dealing with the problems of legal values. The dialectical method of cognition was the main method used for the research, along with the general scientific methods of analysis, synthesis and the legalistic method. By implementing the historical approach to the evaluation of the materials, the authors adhered to the comprehensiveness and objectivity of the analysis. The authors strived to demonstrate both the holistic logic of N. N. Alekseev’s philosophy of law and his understanding of the legal axiology in combination with the scientific, metaphysical and religious definitions.   Results. In the present work, the authors have analysed the mindset of the Russian philosopher and legal scholar N. N. Alekseev, whose views concerning the values in law were neglected in the national juridical science during most of the twentieth century. The ethical and legal concepts of N. N. Alekseev and the critical attitudes to this issue presented in the theoretical works of the various scientists have been reflected upon. Special attention has been given to the profound adherence of N. N. Alekseev to the idea of immanent interrelation of the main problems of law with the value aspects. The article defines the prognostic importance of the original concept formulated by the philosopher and legal scholar.   Discussion and Conclusion. The analysis of the methodology of N. N. Alekseev's philosophical and legal mindset is important for the Russian juridical science. Many of the ideas contained in his works have already had a strong impact and continue to affect the research of the modern philosophers and legal scholars concerning the topic of the legal axiology. The ahead of his time prescient conclusions of N. N. Alekseev about the role of value factors in the future development of the Russian state are of considerable interest in the context of the further development of Russia as a law-governed state.