Comparative Law Methodology Research Articles

Artificial Intelligence and Robotics: The Possibility of Invasion of Human Rights and Legal Regulation of these Processes in the EU and the World

The paper analyzes the dangers faced by man and modern society in the light of the development of artificial intelligence and robotics in the fourth industrial revolution. The author examines the areas of human rights that are threatened by these advances in science and technology in case they are not properly monitored and regulated through legal advances. The historical and regional aspects of legislative regulation of the use of artificial intelligence units and robotics are investigated. Prospects of collision of artificial intelligence units with interests of the person and mankind, and also possible legal mechanisms of the resolution of the conflicts arising between them are analyzed. Using the methodology of comparative law, integration law, international law, analysis and synthesis, the author considers the latest documents of the European Union, EU member States, the United States, Russia, China, South Korea and other most representative countries of the world aimed at effective legal regulation of this promising area of development of modern law. The paper provides an analysis of the main trends in the evolution of modern law of science and technology that affect the life and realization of human and civil rights at the national, supranational and international level and the peculiarities of their legal regulation. The research is carried out on the interdisciplinary combination of elements of comparative law, integration, international and national law with reference to philosophy, sociology, history and prognostics. Conclusions are drawn on the possibility of using the world scientific achievements for the long-term development of the law of the Russian Federation. It is also possible to apply positive foreign experience of legal regulation of artificial intelligence and robotics adapted to the conditions of integration organizations with the participation of the Russian Federation.

Toolkit or Tinderbox? When Legal Systems Interface Conflict

In the aftermath of conflict, the need to stabilize the Rule of Law engenders broad consensus. Establishing a legitimate legal framework and strengthening institutions capable of delivering just results are considered primary steps in rebuilding societies destabilized or destroyed by conflict. Building upon existing academic theory, complying with applicable international law and drawing from concrete field experiences in Rule of Law reform over the past seven decades, this Article proposes a next stage in post-conflict reconstruction processes through the use of a “toolkit approach” that benefits from a Comparative Law methodology. Following an initial mapping process identifying root causes of conflict, a problem-solving strategy is undertaken, in which disparate aspects of legal systems are disaggregated, examined for their role in creating or resolving conflict, and reconstructed. The proposed model is not limited by traditional boundaries of legal system theory but instead seeks to address specific legal deficits that contribute to conflict and consider component aspects of a variety of legal systems as solutions. Altogether it intends to avoid cut-and-paste strategies, eliminate residual pre-conflict and post-colonial practices, and create fair and equal procedural processes that promote lasting peace and a durable Rule of Law.

On the Content of the Human Right to Affordable and Quality Medical Care in the Russian Constitution, Federal Legislation, and Constitutions (Charters) of the Subjects of the Russian Federation

The article discusses the issues of constitutional-law and special legal regulation of the human right to health and affordable and quality medical care. It is shown how this right is stipulated by constitutions and charters of subjects of the Russian Federation in accordance with the Constitution of Russia. Whereas the Constitution providing the right to health does not prescribe that medical care should be «affordable» and «quality», the author believes that these attributes are intrinsic to medical care because it is only affordable and quality medical care that is a guarantee of realization of the right to health. Health is considered by the author as a prerequisite of using other rights and freedoms. Using the comparative-law methodology, the author analyzes constitutions and charters of constituent entities of the RF and concludes that less than a half of them have provisions concerning the right to health protection and medical care. At the same time, under Constitution protection of human rights shall be within the joint jurisdiction of the Russian Federation and constituent units. It is emphasized that the special role in protection of the human right to health on the sub-federal level belongs to regional constitutional (charter) courts, some examples from their practice are given.

СТАНОВЛЕННЯ ПОРІВНЯЛЬНОГО ПРАВОЗНАВСТВА ТА ПОРІВНЯЛЬНОПРАВОВОЇ МЕТОДОЛОГІЇ

The article deals with the theoretical research aimed at studying the development of comparative law and comparative legal methodology, discloses the stages of the development of comparative methods in the framework of scientific legal systems, and establishes key ideas for the development of the modern jurisprudence. In the process of conducting the research, the specifics of the methodology and cognizance of comparative legal trends were established and the distinctive features of the development of the national comparative law were shown. The main issues relating to the existing methodology of comparative jurisprudence were revealed and the ways of solving them were presented. It was shown that further development of legal comparative studies as a relatively independent branch of the legal science would make it possible to have a positive influence on the entire system of jurisprudence, the development of professional knowledge and the skills of lawyers. The recommendations proposed would contribute to the expansion and strengthening of the socially fair society governed by law. It was established that scientists doing comparative studies pay attention to the research of national and international law from the comparative point of view thus enriching the legal science with new knowledge. The necessity of unity between the classical theory of jurisprudence and specific areas of law was proved, which would significantly expand the formation of the new approach to the development of legal comparative studies. It was shown that the need to solve the above problems is justified by the processes of the legal comparative studies. It was noted that the use of the comparative analysis would ensure the interaction of science and practice, the unity of science with the interests of society and the values thereof.

Reconsidering Comparative Methodology in Administrative Law

What are the forms of comparison in administrative law? Which impact do methodological approaches, both theoretical and practical, on comparative research in administrative law? This article proposes some reflexions on these questions, also considering the historical origins of comparison in administrative law. Unlike private and constitutional law, administrative law is a young, comparative legal discipline, and this is one of the main reasons because the interest in comparison in administrative law has been neglected until the beginning of the 1990s of last century. Global issues—such as migrations, international terrorism, wars, environmental changes or recent economic crises—require a rethinking of comparative analysis from a pluri-methodological (and multidisciplinary) point of view. In the second part of the article, I will try to analyze the use of comparative law methodology for administrative law research.

Lei anticorrupção brasileira e chilena: desafios no combate à corrupção

Existe uma tendência mundial de aumentar progressivamente atos repressivos contra a corrupção, seja por meio da conscientização social, seja por meio do processo legislativo, elaborando-se leis tanto no âmbito interno quanto internacionalmente. A lei anticorrupção brasileira (Lei nº 12.846) é fruto de uma pressão interna e de compromissos internacionais que o Brasil outrora assumiu, como a Convenção sobre o Combate da Corrupção de Funcionários Públicos Estrangeiros em transações Comerciais Internacionais, bem como a legislação americana Foreign Corrupt Practices Act – FCPA e europeia Bribery Act (Reino Unido), tendo como principal finalidade a responsabilização objetiva na seara das pessoas jurídicas. O Chile também criou lei inspirada na convenção citada, com o escopo de reprimir a corrupção das pessoas jurídicas, intitulada Ley de La Responsabilidad Penal de Las Personas Jurídicas (Lei nº 20.393). Ambas as leis guardam em seu âmago a repressão de atos corruptos advindos de condutas de pessoas jurídicas, porém há particularidades que diferem o proceder e as penalidades. O objetivo do artigo é analisar as duas leis, fazendo um intercâmbio de institutos com a finalidade de aprimorar a lei anticorrupção brasileira em alguns pontos omissos ou deficientes em nosso entender. Para tal, será utilizada a metodologia do direito comparado, com uma abordagem pautada pela microcomparação, utilizando em especial o princípio da funcionalidade, bem como o método dedutivo de pesquisa, tudo com o intento de aumentar o debate não apenas sobre a elaboração da lei, mas de seus institutos que ainda permanecem inexplorados.

Methodology of Chrono-Discrete Mono-Geography Comparative Law in the Study of Judicial Reforms in the Russian Empire and the Russian Federation

The article proves the expediency of applying the methodology of chrono-discrete mono-geography comparative jurisprudence when studying judicial transformations in the Russian Empire and the Russian Federation. The author proves that the judicial reforms of Emperor Alexander II and the judicial transformations late XX - early XXI century in their totality represent a chrono-discrete phenomenon. Examines the basic principles of the scientific school of chrono-discrete mono-geography comparative jurisprudence as applied to the study of Russian judicial reforms in the Russian Empire and the Russian Federation. In the paper it notes that the judicial transformation as a phenomenon include items such as 1) conceptual framework, ideas of reform; 2) judicial institutions; 3) theoretical and practical problems of implementation; 4) results; compliance, what happened, what was intended by the reformers; 5) attitude of the legal community and the public to reform on the whole and its separate institutions. The essential core of any judicial reform are newly constructed or transformed its institutions. Speaking of chrono-discrete judicial institutions, the author proposes to divide them into classical and non-classical. The first is the Institute of magistrate’s court, the juries and the Institute of bailiffs and institute of appeal. To non-classical chrono-discrete institutions include prosecutors and the legal profession. As the main comparable problems, characteristic for the studied periods, the author sees 1) the reforms “from above”; 2) the issue of financial support for reforms; 3) personnel problems; 4) problem of implementation of judicial reforms in space and time; 5) constant and numerous adjustment of normative legal acts, regulating the structure and activity of the relevant judicial institutions.

The Institutional History of Criminal Liability for Tenancy and Labor Disputes in Korea and Japan with the Comparative Law Methodology

The Institutional History of Criminal Liability for Tenancy and Labor Disputes in Korea and Japan with the Comparative Law Methodology

The Limits of the Comparative Public Law Methodology in International Investment Law: An Australian Case Study

Government conduct is increasingly reviewable by investment treaty tribunals. These tribunals often consider whether a host state has failed to afford fair and equitable treatment by defeating a foreign investor’s legitimate expectations. To discern what a foreign investor can legitimately expect, some tribunals use a comparative public law methodology that draws on domestic public law. Using Australian law as a case study, I suggest that the comparative public law methodology may not be able to achieve all of its aims.

Constitutional-Law Status of Autonomous Territories in the CIS Countries

In the article, the legal status of autonomous territories in the CIS (the Commonwealth of Independent States) countries is discussed from a comparative perspective. Using a comparative-law methodology, the author examines constitutional provisions as well as special laws and regulations concerning each autonomous entity. The territorial autonomies in Azerbaijan (the Nakhchivan Autonomous Republic), Uzbekistan (the Karakalpakstan Republic), Tajikistan (the Gorno-Badakhshan autonomous region), and Moldova (Gagauzia) are studied. The status of autonomous territories in these states is defined by legal acts with different legal force. As a result, actual status of these territories varies from state to state. Nevertheless, it is emphasized that there are some similarities in provisions of the constitutions and other acts of the states under consideration. A significant attention is paid to analysis of systems of public authorities in autonomous territories, their organization, and procedures of appointment and elections to them. The competence of autonomous units and their legislative and executive bodies is also discussed. The author raises the question about the degree of autonomy in autonomous bodies’ activities.

Liability for negligently issued anti-mafia certificates

PurposeThis paper aims to analyse the different forms of liability that might apply under Italian private law to anti-mafia advisors who negligently perform their duties, with particular regards to auditors concerning the drafting of mandatory anti-mafia certificates as bidding documents for public procurement contracts.Design/methodology/approachThe analysis is based on the comparative law methodology of dissociation of “legal formants”, that is, on the study of separate contributions by each element of the legal system – from black-letter provisions to judicial dicta, from scholars’ arguments to administrative practices – to the making of legal rules in a given setting.FindingsNeither case law nor academic writing is abundant on this topic. Yet, it can be fairly assumed that an advisor who negligently drafts anti-mafia certificates might incur both contractual and tortious liability.Originality/valueThe paper investigates an area, which has so far been largely unexplored, and, thus, contributes to paving the way for a better understanding of the legal framework applicable to the cases under examination.

VICTIM–PERPETRATOR RECONCILIATION AGREEMENTS:WHAT CAN MUSLIM-MAJORITY JURISDICTIONS AND THE PRC LEARN FROM EACH OTHER?

AbstractAs States that use the death penalty liberally in a world that increasingly favours abolition, the Muslim-majority jurisdictions that are strict exponents of Islamic law and the People's Republic of China share a crucial commonality: their frequent use of victim–perpetrator reconciliation agreements to remove convicted murderers from the threat of execution. In both cases, rather than a prisoner's last chance at escaping execution being recourse to executive clemency, victim–perpetrator reconciliation agreements fulfil largely the same purpose, together with providing means of compensating victims for economic loss, and enabling the State concerned to reduce execution numbers without formally limiting the death penalty's scope in law. Utilizing the functionalist approach of comparative law methodology, this article compares the 13 death penalty retentionist nations that have incorporated Islamic law principles into their positive criminal law with the People's Republic of China, as to the functions underpinning victim–perpetrator reconciliation agreements in death penalty cases.

Victim-Perpetrator Reconciliation Agreements in Murder Cases: What Can Muslim-Majority Jurisdictions and the PRC Learn from Each Other?

As states that use the death penalty liberally in a world that increasingly favours abolition, the Muslim-majority jurisdictions that are strict exponents of Islamic Law and the People’s Republic of China share a crucial commonality: their frequent use of victim-perpetrator reconciliation agreements to remove convicted murderers from the threat of execution. In both cases, rather than a prisoner’s last chance at escaping execution being recourse to executive clemency, victim-perpetrator reconciliation agreements fulfil largely the same purpose, together with providing means of compensating victims for economic loss, and enabling the state concerned to reduce execution numbers without formally limiting the death penalty’s scope in law. Utilizing the functionalist approach of comparative law methodology, this article compares the thirteen death penalty retentionist nations that have incorporated Islamic Law principles into their positive criminal law with the People’s Republic of China, as to the functions underpinning victim-perpetrator reconciliation agreements in death penalty cases.

The Tip of the Iceberg or What Lies Beneath the Surface of Comparative Law

This is a review essay of 'Epistemology and Methodology of Comparative Law' (2004) which is a book edited by Mark Van Hoecke. The idea is not to be content with merely describing the volume; instead, it will be sought commenting on the book personally and also expanding on some of the main themes. As a result the outcome should reflect not only on the volume but also the opinions and ideas of this author. In this essay there are three main themes: macro-comparative law, the European private-law-centred legal debate, and the theory of comparative law.

The Fair Use Doctrine in the Contemporary US Copyright Law

The subject of the research is the fair use doctrine in the US copyright law which is the basis for free use of works. Under the doctrine, third parties may freely use copyrighted works through fair use provided that it promotes “progress of science and useful arts” (Article 1 section 8 subsection 8 of the US Constitution).Special attention was given to the analysis of the content of the fair use doctrine beginning withits occurrence in the first cases related to US copyright law. The analysis was conducted on the basis ofcase law and some of the decisions of US courts in recent years. The following methods were used inthe research: legal analysis, legal simulation, legal forecast, comparative law methodology and historical analysis. The major research findings are as follows. The main features of the fair use doctrine inthe contemporary US copyright law have been identified, i.e. the doctrine is based on the four classicevaluation factors (enshrined in the US Copyright Act 1976); the judge may use any other assessmentfactors; alteration of the qualification of some classical assessment factors in comparison with earlierperiods of time; the occurrence of trends in the perception of fair use doctrine essence. The conclusionis made in respect of the unpredictability and spontaneity of the modern system of the US copyright law, based on the fair use doctrine. The conclusion is drawn in respect of insufficient conformity of thefair use doctrine with the requirements of the Berne Convention 1886 and to “three-step” test criteria.The main areas of controversy have been highlighted: the aim of legal regulation, the range of objects subject to regulation, permitted ways to use works.

Electronic identity (eID) and electronic signature (eSig) for eGovernment services – a comparative legal study

Purpose This paper aims at providing an overview of different approaches toward identity management pertaining to citizen to government (C2G) eGovernment applications. Design/methodology/approach The paper adopts a comparative law methodology. It asks how different legal systems deal with the same problem. The different legal frameworks of Austria, Germany, Liechtenstein and the Swiss Canton of Zug are analyzed and compared pertaining to identification and authentication. The process of comparison involves three phases: the descriptive phase (describing and analyzing the legislation to be compared), the identification phase (identifying the differences and similarities between the systems compared) and the explanatory phase (attempting to explain the resemblances and similarities between the systems). Findings Each of the four countries adopted different legal solutions. This is due to the different legal culture and the existing legal framework in which the legislator, in most cases, seeks to fit in the respective eGovernment solution, rather than adopting a completely new solution. Originality/value This study reveals different possibilities for legislatures to regulate electronic C2G procedures, ranging from a combination of electronic identity (eID) and electronic signature to pragmatic eID models in combination with further electronic authentication functionalities. The focus of the study is the legal framework and not the technical solution.

Нормативно-правовое регулирование борьбы с «пьяным вождением»: опыт Китая

The subject of this research includes legal regulations imposed by the Chinese government to combat alcohol (drug-)-impaired driving, and the most high-profile cases containing the elements of the offence at hand are listed as well. The author analyzes the current legislation of the People’s Republic of China that sets out criminal, administrative and disciplinary liability for “drunk drivers”. The research also includes provisions of the PRC Criminal Code, the Law of the People’s Republic of China on Road Traffic Safety, several regulatory instruments adopted by various national authorities, the PRC’s Supreme People’s Court’s elucidation on applying the existing legal regulations in the analyzed sphere. Special attention is paid to the statistical data that confirm the high degree of public danger of the offence at hand, as well as its influence on the overall criminal situation in the country. The conducted research is based on the comparative law methodology; a systematic approach, technical, historical and statistical methods are used to achieve objectives stated in the article. The academic novelty of the research is that comprehensive analysis of the Chinese government’s fight against “drink driving” (its regulatory aspect) has been carried out for the first time in the Russian Jurisprudence and Chinese studies. It is worth mentioning that Chinese law-makers have chosen to include into the Criminal Law a provision criminalizing the alcohol-(drug-) impaired driving regardless of the consequences. This step was preceded by a considerable increase in the number of road accidents caused by drunk drivers. Should two or more people die, Chinese courts impose harsh criminal liability measures on the perpetrator, up to life imprisonment or, in certain cases, even to capital punishment. Moreover, the “drunk driver” is to be dismissed from the civil service and expelled from the ruling party, if he was convicted of the offence at hand. Measures imposed by Chinese law-makers resulted in drastic decrease in the number of road accidents caused by drunk drivers, as well as in considerable decrease in the number of people killed on the Chinese roads.

На пути к глобальному конституционному генофонду

This essay aims to develop the methodology of comparative constitutional law in a way that draws more comprehensively on world constitutional experience. It proceeds in two stages. The first part identifies key methodological challenges for comparative constitutional law, drawing on the literature of comparative law, while taking account of the distinctive character of constitutional law. The challenges examined here are the dichotomy between similarity and difference; the approach to the task of comparison; taxonomy; the impact of culture; and pluralism. The second part of the argument considers the impact on comparative constitutional method of the conditions in which Constitutions operate in the early 21st century, including internationalisation, globalisation and advances in information technology. This part of the essay aims to show that, while there are considerable contemporary pressures for convergence, with implications for comparative method, other forces foster difference and pluralism, creating new methodological challenges. The essay concludes with a series of propositions for the methodology of comparative constitutional law, as a platform for further research and dialogue.

O PRINCÍPIO DA PROIBIÇÃO DO RETROCESSO AMBIENTAL NO DIREITO COMPARADO EUROPEU (The Environmental Ratchet Principle in the European Comparative Law)

Portuguese Abstract: The ratchet principle, or non-retrogression principle, may yet be considered a theoretical or juridical proposition, waiting for its formal recognition. Beyond the understanding of its juridical principle nature, it is relevant to present its definition in order to identify its limits, scope and purposes. This paper aims to understand how this principle is presented in the European Law, using the comparative law methodology, especially in France, Belgium, Italy, Portugal and Germany. This task was easier to achieve due to the extensive research coordinated and published by Michel Prieur and Gonzalo Sozzo. It’s an exploratory research and aims to contribute to the doctorate thesis undergoing at UFPR. English Abstract: The ratchet principle, or non-retrogression principle, may yet be considered a theoretical or juridical proposition, waiting for its formal recognition. Beyond the understanding of its juridical principle nature, it is relevant to present its definition in order to identify its limits, scope and purposes. This paper aims to understand how this principle is presented in the European Law, using the comparative law methodology, especially in France, Belgium, Italy, Portugal and Germany. This task was easier to achieve due to the extensive research coordinated and published by Michel Prieur and Gonzalo Sozzo. It’s an exploratory research and aims to contribute to the doctorate thesis undergoing at UFPR.

Watch Out for the Under Toad: Role and Method of Interdisciplinary Contextualisation in Comparative Legal Research

textabstractThis article studies the significance of insights from non- legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners