Legal Thinking Research Articles

Prohibited artificial intelligence practices in the proposed EU artificial intelligence act (AIA)

Artificial intelligence (AI) now forms a more and more important part of human lives. After years focussed on the development of AI, the initial hype about its many expected benefits has gradually given way to rising ethical concerns about its inherent risks and dangers. Efforts to confront and contain the most serious risks related to AI have now prompted a number of legislative or regulatory proposals at the national, regional and global level. One of the most comprehensive regulatory initiatives is the European Union's proposal for an Artificial Intelligence Act (AIA), which was released in April 2021 with a view towards establishing a legal framework for trustworthy AI. To this end, the draft AIA pursues a proportionate horizontal and risk-based regulatory approach to AI, broadly classifying AI into the categories of unacceptable risks, high risks and low or minimal risks. The unacceptable risks are those that are deemed to contravene European Union values, and therefore, they are considered to be ‘prohibited AI practices’ by Article 5 AIA. The prohibited AI practices are classified into four categories, namely 1) AI systems deploying subliminal techniques; 2) AI practices exploiting vulnerabilities; 3) social scoring systems; and 4) ‘real-time’ remote biometric identification systems. The proposed regulatory approach, however, appears problematic given the four categories’ inherent interrelatedness and the numerous possibilities for their mutual combination and entwinement. It is also problematic from the perspective of the human mind, as each of the four categories alone allows for the manipulation of human thought and behaviour, thereby endangering freedom of thought and other fundamental rights. In the context of the proposed AIA, both aspects give rise to unknown and unsolved conundrums that create difficult regulatory challenges that raise the necessity to also look at the wider implications of these technologies for the entire legal system. As these conundrums often find their expression in paradoxes and oxymora, this article calls for a wider interdisciplinary debate and advocates a different regulatory strategy using these concepts to transcend the limitations inherent in dualistic or dichotomous modes of legal thinking.

Towards a use of “legal design thinking” techniques in tax law studies

To build a relationship between Tax Administration and taxpayers based on trust, law science must provide the necessary information related to policies or institutions but also inform taxpayers about their rights and obligations. This information must be known but, above all, understood.The objective is to introduce a paradigm shift in the way legal studies are approached through Legal Design thinking techniques. Specifically, starting from the need for the jurist to study the law, collaborating with other disciplines to design mechanisms that allow the communication of complex information that helps both the understanding of the law and decision-making process.

Rekonstruksi Negara Hukum dalam Paradigma Hukum Islam dan Ketatanegaraan di Indonesia

This paper aims to analyse the discourse of the rule of law in the perspective of Islamic law and constitutional law in Indonesia. The research is a literature study with the main source of books, journals and other references related to the concept of the state in the perspective of Islam and constitutional law in Indonesia. The research method is descriptive qualitative with a normative approach. In the Indonesian context, the concept of law and the rule of law must be realised that it is not an original result or does not grow from within Indonesian society itself. The rule of law is an imported product or a building imposed from outside. The rule of law is the fruit of adoption and transplantation through the Dutch colonial concordance politics and European countries, commonly known as the Rule of Law and Rechtstaat. The conception of the Rule of Law and Rechtstaat are two conceptions of the rule of law that are only normative-legalistic in nature with categorical elements such as the supremacy of law, equality before the law, due process of law, It appears that the Indonesian rule of law, both at the level of the Rule of Law and Machtstaat, is influenced by external legal thinking that emphasises the anthropocentric dimension that focuses on individual and liberal values. So that in practice the Rule of Law turns into the Rule of Man, or from Rechtstaat turns into Machtstaat. In contrast to nomocracy in Islamic law, the rule of law is built on divine values, where law is the highest supremacy in human life. To get to the true state of law, it is necessary to reconstruct the conception and paradigm of the state of law in the future.

Looking for Pauli, Pauli Murray's Trans Poetics

Abstract Pauli Murray was a twentieth-century Black writer, priest, and legal thinker who has been, for the last two decades or so, the subject of a recovery project. As a result, Murray is now regarded as a crucial player in the history of civil rights litigation; in US feminist organizing and theology; and in Black feminist critique in relation to all of the above. Further, the recovery of Murray's contributions has coincided with the narration of Murray as someone who was (or might have been, in another time) trans. Following the lead of Isaac Julien's Looking for Langston (1989), and focusing on Murray's life and work as a poet, this meditative essay considers Pauli Murray as an enduring figure in and for a Black trans literary past.

예술을 활용한 법교육 방안 탐색

This study aims to clarify the need for the use of art in law-related education and to explore specific ways. Law-related education requires creativity, imagination, insight, etc, in that it aims not only to acquire legal knowledge but also to cultivate legal thinking ability and positive legal awareness of law. However, traditional law-related education has been criticized for focusing on conveying complex legal knowledge and failing to attract students’ interest and serve as a value education. The use and application of art in law-related education is expected to contribute to overcoming the limitations of existing cases and content-oriented law-related education and fostering convergent talents. In this study, it was confirmed that it is necessary to use various forms of art such as painting, photography, music, and dance in law-related education, and to use art as a material for class and as an activity and expression. In addition, it was confirmed that when using art in law-related education, it is necessary to take an approach that considers cognitive and contextual suitability, relevance to the core content of law-related education, and complementary use between various arts. Based on this, examples of law-related education teaching and learning methods using art were explored, and specific examples of law-related education using visual art, law-related education using literary works, and law-related education using movies were presented, respectively. It is hoped that the use of art in law-related education can be realized more actively based on the discussion of this study.

Социоконструктивистская функция права

In the context of the obvious failure of liberal Westernization, on the one hand, and the obvious change in the legal mentality of Russian society under the influence of Eurocentrism, on the other, it is necessary to answer the question about the causes of the existing dualism. The author connects the answer to this question with the epistemological nature of legal reality (reality) as a segment of social reality (reality). From the point of view of modern epistemology of law, the author highlights the socioconstructivist function of law, which allows, without rejecting materialistic and socio-cultural determinism, to start from the subject of understanding of law, from his legal consciousness and legal thinking conditioned by tradition.

RELEVANSI FIKIH TRADISIONAL

In terms of thinking and understanding, Muslims can be divided into four social ideological paradigms or groups, namely traditional, modernist, revivalist, and transformative groups. Traditional fikih has become one of the characteristics of Islamic legal thinking that has developed and still exists in Indonesia. This traditional fikih thinking is guarded and preserved in the academic world of pesantren, although it does not cover the possibility that many pesantren graduates have new thoughts by adapting to the development of problems experienced by society. This paper describes the development of fikih and the weaknesses in the relationship between traditional fikih and pesantren education, in which pesantren graduates are required to be involved in solving the problems of the nation and state. The conclusion is that the existence of traditional fikih is due to the attitude of the scholars who are careful in accepting new things because they are worried that these new things will harm people's lives.

‘Legal Formalism’ and Western legal thought

ABSTRACT According to long-established narratives, legal thinking in Germany, France and the U.S.A. was shaped by formalist legal cultures for the most part of the nineteenth century until the respective legal sciences embraced their social responsibility in the early twentieth century. Recently, legal historians have begun to question these narratives. In separate analyses, they have shown that the critics of ‘Legal Formalism’ exerted a lasting influence on historical research since the early twentieth century, thereby fostering a deeply charged understanding of nineteenth century jurisprudence. What went largely unnoticed, however, was the transnational dimension of this false narrative. Due to the transnational ties of the critics of ‘Legal Formalism’, a powerful misrepresentation of nineteenth century Western legal thought emerged that still influences contemporary global legal history. Dismantling the prejudices surrounding the Western jurisprudence of the nineteenth century causes crucial challenges for conceptualising nineteenth century Western legal thought.

The highlights of the interwar legal thinking in the construction of the contemporary rule of law state

Lately, the need to re-evaluate the axiological dimension of law and to reconsider the idea of the rule of law and democratic values has been increasingly emphasized, not only in the conditions of states with young democracies such as the Republic of Moldova. The radical transformations that post-Soviet states entered towards the end of the 20th century made them aspire to the establishment of societies in which the principles of the rule of law are not only enshrined in normative acts, but are also practiced. Thus, given the diversity of challenges facing contemporary states, the processes and crises that increasingly challenge democracy and the rule of law, we consider it appropriate to return to philosophical and legal thinking and to the determination of its valences in building the contemporary rule of law, highlighting its particular, specific and original character, which determines its place in the universal philosophical-legal thinking.

"ДЕЦИЗИОНИЗМ ТАМ, ГДЕ ОТСУТСТВУЕТ ЛЕГАЛЬНОСТЬ": ОБ ОДНОМ ИЗ ТИПОВ ЮРИДИЧЕСКОГО МЫШЛЕНИЯ В ПОЛИТИКО-ПРАВОВОМ УЧЕНИИ КАРЛА ШМИТТА

The author of the article attempts to analyze the doctrine of decisionism, presented in Carl Schmitt’s work “On the three types of juridical thinking” (1934). In it, the German political philosopher and lawyer (1888– 1985) sums up some scientific results related to the very concept of decisionism and the corresponding decisionist thinking, having focused his very first treatise “Dictatorship” to that topic. “From the origins of the modern idea of sovereignty to the proletarian class struggle” (1910), and subsequently – the work “Political Theology. Four chapters on the doctrine of sovereignty” (1922). Among the three types of legal thinking considered by Schmitt (normativism, decisionism, thinking in categories of a concrete order), the greatest relevance belongs to decisionism, since it is in it that Schmitt sees the main means of combating abstract, faceless, anonymous and extra-spatial legal normativism, the consolidation of which in Germany contributed to both the reception Roman law, as well as the political and legal teachings of a number of normative legal scholars, the central place among whom was occupied by the Austrian lawyer G. Kelsen (1881–1973) with his theory of “pure” (abstract) law. The main factor that supports Schmitt’s research interest in decisionalism is its multiplicity (expressed in at least three of its subtypes: political, judicial, and autocratic). That feature of decisionalism suggests its relationship to the other two types of thinking considered in the “Three Types” (normative thinking and thinking in the categories of a specific order). In the first section of the article (“On three types of juridical thinking” by K. Schmitt. The decision to declare a state of emergency as the main feature of the sovereign), its author offers his commentary on Schmitt’s review of all three types of legal thinking, focusing his and the reader’s attention on the main thesis of decisionism (“He who makes an emergency decision is a sovereign”), on the distinction between normativism and decisionism and on the dependent nature of the latter on thinking in categories of a specific order. Particular attention in the article is paid to the issue of decisionism in American and English law (the second section “On the issue of the relationship between normativism and decisionism within the framework of case law”), since American law is partially built on judicial precedents, and therefore decisions of judges, and in English law Schmitt sees certain features of decisionism as the basis for the manifestation of thinking in categories of a specific order. The third section of the article (“Critical remarks regarding Schmitt’s political and legal doctrine of decisionism”) is focused on the consideration of at least two goals that Schmitt pursues by critically analyzing the doctrine of decisionism: the first (close) is to justify the feasibility of replacing normativism with decisionism; the second (prospective) is to prove the need to make existential decisions in case of emergency situations. In the process of analysis, Schmitt ignores the obvious fact that decisions of such a kind, not supported by the norms of law, contribute to the lawlessness of authorities acting as the sovereign.

Legal Thinking and Suggestions on 3.15 "Earth Pit Pickled Cabbage" Incident from the Perspective of Food Safety Law

Legal Thinking and Suggestions on 3.15 "Earth Pit Pickled Cabbage" Incident from the Perspective of Food Safety Law

Constitutional Amendments in Vieira de Andrade's Legal Thinking. The Art of Enduring

Constitutional Amendments in Vieira de Andrade's Legal Thinking. The Art of Enduring

Improving the quality and efficiency of lawmaking against the backdrop of modern social transformations

In the modern era, social transformations contribute to the dynamic development of basic legal frameworks governing public relations. Consequently, the lawmaking process is facing a certain crisis due to the rising legislative inflation and a gap between the pace of social change and lawmaking mechanisms. In these circumstances, improving lawmaking activities should be based on doctrinal developments, including those concerning lawmaking quality and efficiency. The article uses constructivism methodology to illustrate the inextricable connection between the legal process and law enforcement, which is seen as the first stage in the process of shaping the legal reality. The authors analyze how domestic legal thinking has evolved in relation to the efficiency and quality of lawmaking. A list of the criteria and parameters proved by Soviet and post-Soviet scientists was compiled. It is shown that lawmaking activity efficiency and quality are dialectically related. It is justified to consider the social determinants that affect lawmaking efficiency. Accordingly, it is concluded that the efficiency of legal norms should be measured by what impact their application has had on society, in what extent they have met the goals of social management at the given stage of social development. The authors propose three levels of measuring the efficiency of legal norms in modern society: formal-legal, axiological and general social. The value of legal monitoring is highlighted in assessing the quality of lawmaking and determining the extent to which legal norms are efficient.

Аксиологический статус государственно-правовой доктрины русского консерватизма

The features of the axiological status of the state-legal doctrine of Russian conservatism, which have an impact on national algorithms of value-motivated organization of legal activity, are considered. It is proved that the conservative doctrine represents the interrelation of irrational legal images and rational ideas originating from religious institutions and state-legal traditions of society, based on the concepts of the priority of ethical principles over formal legal grounds. It is proved that the Russian legal thinking differs significantly from the Western one, which is most fully embodied in the mode of domestic conservatism with its inherent theonomic ethics and metaphysics of unity. Based on the analysis of the domestic legal tradition, the definition of conservative legal values is formed as conditioned by the cultural and civilizational originality of ideas about legal reality, expressed in legal consciousness and legal culture, perceived in unity with moral values. The aim of the study is to establish the axiological status of the state-legal doctrine of Russian conservatism. The methodological basis includes the use of specially legal methods: historical, formal-logical, comparative, at the same time, the historical-legal nature of the work necessitated the involvement of theoretical-legal interpretation and evaluation of state-legal ideas, structural and comparative methods. It is stated that the axiological potential of the state-legal doctrine of Russian conservatism lies in the convergence of the modes of morality and law, orientation to law enforcement with congruent interaction of legal and moral regulators. It is argued that within the framework of the axiological approach and in the context of taking into account the legal tradition of Russia, it is possible both to overcome the inertia of the modern theory of law and to increase the effectiveness of legal regulation.

Overcoming Cognitive Distortions of Legal Thinking by Means of Formal Logic

Overcoming Cognitive Distortions of Legal Thinking by Means of Formal Logic

The Dilemma of Vice Chancellors of Law and Its Improvement—Based on the Analysis of Court Personnel

Nowadays, the state attaches more and more importance to the protection of minors and legal education, and with the implementation of the Measures for the Appointment and Management of Vice Chancellors of Law in Primary and Secondary Schools, the coverage of vice chancellors of law in primary and secondary schools has become more and more extensive. However, in practice, there are a series of problems such as the lack of enthusiasm of court personnel as vice chancellors of law, the lack of full implementation of responsibilities, the unbalanced provision of resources and the too single teaching mode, which make it difficult to guarantee the efficiency and effectiveness of court personnel as vice chancellors of law. Therefore, the functions of judge and vice chancellors of law should be organically combined, and the system of employment, management and assessment of vice chancellors of law, as well as the content and form of innovative legal education should be continuously improved to improve the efficiency of vice chancellors of law, so that "vice chancellors of law" has a "name" and "reality" establishment of legal thinking of minors should be promoted to take care of the healthy growth of minors comprehensively.

Legal Design Thinking

Legal Design Thinking

A Hero Forgotten: Gus Garcia and the Litigation of Hernandez v. Texas (1954)

A Hero Forgotten:Gus Garcia and the Litigation of Hernandez v. Texas (1954) Gabriel Valle (bio) In 1951, in the east end of Jackson County, Texas, if Mexican-American attorney Gus Garcia had attempted to stop by the local restaurant for lunch before his next trial, he would have been greeted with a sign reading "No Mexicans Served."1 When Garcia walked into the Jackson County courtroom to defend his client Pete Hernandez, on trial for the murder of Joe Espinoza, he would have been greeted by a sea of white faces on the jury.2 Finally, should Garcia have needed to use the restroom at the courthouse, there would have been two available; one room unmarked, and the other with two signs above reading "Colored men" and "Hombres Aqui."3 Gustavo 'Gus' Garcia lived amongst and advocated against these pervasive reminders that, to white Texans, Mexican Americans were distinct and decidedly second-class citizens. As a young and promising Mexican-American civil rights attorney, Garcia took it upon himself to challenge these injustices. The talented attorney's trailblazing impact on Mexican-American civil rights deserves wider recognition.4 His dedication to Mexican-American civil rights transformed a local open-and-shut murder case with an unsympathetic plaintiff and factual deficiencies into a brief but national reckoning on Mexican-American civil rights. A Cantina, A Gun, and An Opportunity Although Gus Garcia rocketed to national fame during the Hernandez case, he was already a respected San Antonio attorney when Pete Hernandez initially approached him seeking representation.5 By all accounts, Garcia was a prodigy. A native Texan, Garcia was born in Laredo to one of the state's oldest families, which first settled there in 1765.6 Garcia graduated valedictorian of his high school class, going on to study at the [End Page 31] University of Texas at Austin and became the first Mexican-American debate team captain.7 Garcia graduated in 1936, and received his LL.B. at the University of Texas at Austin two years later.8 After graduation, Garcia initially served as an assistant San Antonio city attorney, followed by a stint as an assistant criminal district attorney. When the U.S. entered World War II, Garcia served in the Pacific Theater, earning the rank of First Lieutenant and serving as a Judge Advocate General in Yokohama, Japan.9 After the war, Garcia returned to Texas and began to make a name for himself. He possessed an "awesome eloquence," in both Spanish and English, allowing him to enrapture courtrooms and crowds alike as he simultaneously nurtured a career in the law and speaking on behalf of local Mexican-American candidates for public office.10 Anywhere Garcia went in Texas, the local attorneys and Mexican-American population would praise this "brilliant" young attorney, who possessed "one of the finest legal minds anywhere."11 It was Garcia's work on Delgado v. Bastrop ISD in 1949 that established him as a preeminent Mexican-American civil rights attorney. Delgado was a challenge to Mexican-American school segregation in Texas. The case went before Judge Ben H. Rice on the U.S. District Court for the Western District of Texas. Judge Rice's ruling ordered a permanent injunction from the "segregating of pupils of Mexican or other Latin American dissent in separate schools," as well as in "facilities and services."12 The injunction did allow, however, for separate classes within the same school for first grade students, "solely for instructional purposes," especially if the Click for larger view View full resolution Delgado v. Bastrop ISD (1949) was a successful challenge to Mexican-American school segregation in Texas, although it allowed for some separate classroom instruction. Gustavo "Gus" Garcia (right) made his name litigating that case, along with Hector P. Garcia and Hector de Pena (left and middle). [End Page 32] student's English was not sufficient.13 A full five years before Brown, Garcia had won a watershed school desegregation victory, chipping away at Texas Mexican-American school segregation. Hearing of Garcia's reputation as an attorney and champion for his people, the twenty-six-year-old Hernandez sought him out for representation. The facts were not promising. On February 23...

Analisis Legitimasi Campur Tangan Kemanusiaan: Sorotan Terhadap Prinsip-Prinsip Asas Undang-Undang Antarabangsa

This article discusses the legitimacy of humanitarian intervention as an international doctrine that has often provoked debate among international legal thinkers. It is a controversial concept in international relations because considered violated the basic provisions and principles of international law enshrined in the Charter of the United Nations (UN), namely the principle of sovereignty, the principle of non-intervention and the principle of non-use of force. However, the results of the analysis found that humanitarian intervention is in fact not contrary to those basic principles and even has a strong enough legitimacy to be implement. Thus, this article attempts to reveal and refute the arguments put forward by critics regarding the legitimacy of humanitarian intervention by bringing a qualitative descriptive analysis along with textual interpretation to evaluate and interpret the relevant legal text in detail.

Hans Kelsen’s Basic Norm: Transition from the Transcendental-Logical Condition to a Fiction

Hans Kelsen's legal philosophy plays a significant role in shaping modern legal thinking. The defining, primary concept of his legal theory is the basic norm, which was represented as a transcendental-logical condition until 1960, and then, in the last years of his work, as a fiction. The article is dedicated to the study of the mentioned change, in particular, to the discovery of the influences of Cohen’s and Vaihinger’s philosophical doctrines in the formation of the contents ​​of the basic norm and their criticism. The paper will also discuss the possibility of solving the problem that we come against when separating the pure theory of law from natural law and legal positivist traditions.