Subsystems Of Law Research Articles

Corruption in unlikely places

Corruption, defined as the “misuse of public position for private gain”, represents an act of deviance from official duties in the interest of self-enrichment. Denmark is ranked as one of the least corrupt countries in the world. Danish court records, however, show that corruption cases have appeared in the 21st century. Using Luhmann’s systems theory and Foucault’s method of genealogy, this article asks how this has happened. I argue that understanding corruption in Denmark may go back to changes in public administration ideas and practices since the 1990. New Public Management reform has increased the complexity in public administration where meaning horizons of communication related to different functional systems – especially the sub-systems of law and economy – clashes. I theorise and illustrate using court cases how the coexistence of different codes creates an environment for public employees that in some circumstances – however still rare – result in corruption.

Recognition of Lempa Dua Principle as Traditional Rights of Indigenous People Tau Taa Wana

Tau Taa Wana Indigenous Law Society is an integral part of the nation that has traditional or indigenous rights that must be respected and protected. The existence of the value of customary law as a sub-national legal system is recognized constitutionally in Article 18B Paragraph (2) of the 1945 Constitution of The Republic of Indonesia. The state recognizes, respects, and guarantees the enactment of customary law and its traditional rights as an integral part of the national legal system in Indonesia. This research aims to analyze and explain the legal recognition of the constitutional rights of Tau Taa Wana in the essential legal value of lempa dua as part of the Indonesian legal system for law enforcement eforts. This research used the normative-empirical method withlibrary research and the study of law as a reality (behavior) is done through research on how people follow the lempa dua principle as the living law. It shows that legal recognition of the rights of Tau Taa Wana guaranteed by the Constitution, as long it still exists as a subsystemofIndonesian law as well asa cultural identity and the rights of traditional peoples which is a human right that must be respected. As a subsystem of law, the principle of lempa dua also has a strict ordinance and division of duties between the three elements of kinship in resolving conflicts that occur between relatives tied in the principle of lempa dua. Also, juridicallydetermined that judges and Constitution Court judges as law enforcement are obliged to always keep up with the development of the values of law and justice ofsociety in prosecuting and deciding the case against the court.

Comparing Leaving-Care Policy and Practice Across the Four Nations of the United Kingdom: Exploring Similarities, Differences, and Implementation Gaps

From an international comparative perspective, the four nations of the United Kingdom have robust legal and policy frameworks governing care leaving. Measures taken include access to aftercare workers; pathway planning; introduction of extended care arrangements (permitting young people to remain in placement beyond 18 years); and specific types of financial support. The paper explores commonalities and differences in approaches across the United Kingdom and illuminates how resource constraints, placement availability, workforce challenges and cultural norms may result in implementation gaps and a postcode lottery of provision. Findings lend weight to calls for attentiveness to and systematic evaluation of the implementation process to understand the challenges encountered in embedding effective support for care leavers. Findings also highlight the value of further comparative studies that explore the systems and subsystems of law, policy, and practice in the four nations to contribute to more-informed leaving care policy and practice.

Реальный, иллюзорный и вымышленный правовой плюрализм

Introduction. The relevance of this work is due to the ongoing discussion regarding the existence of various forms of legal pluralism and the ambiguous attitude to the plurality of systems (subsystems of law) within the framework of jurisprudence. In this regard, it is necessary to distinguish the real situations of legal pluralism from illusions and fictions that are found in scientific and near-scientific literature. Methodology. Dialectics, comparative method, formal-logical method, system approach, analysis and synthesis have formed the research base. Results. The statements about the coexistence of various legal systems in society are presented and analyzed. The reasons for the existence of such representations are revealed. Conclusion. The article proves that legal pluralism is a real, albeit ambiguous phenomenon. The opinion is refuted, according to which legal pluralism either does not exist at all, or can only be evaluated negatively. At the same time, its scale and significance are often exaggerated due to representations that are defined as illusory and (or) fictitious legal pluralism. In the first case, it is the result of the illusions of the researchers themselves (thinkers) or a purposeful attempt to generate such an illusion from third parties. In the second, these are artistic descriptions of clearly fictional state-legal systems. Social reality and erroneous judgments about it, the fruits of imagination should be distinguished. At the same time, persistent delusions and fantasies can be non-random, socially conditioned, and perform certain functions in society.

РЕТРОСПЕКТИВНИЙ АНАЛІЗ ВІДМЕЖУВАННЯ ПОРУШЕНЬ ВІД ЗЛОЧИНІВ ТА ПРОСТУПКІВ ЗА КРИМІНАЛЬНИМ ЗАКОНОДАВСТВОМ ФРАНЦІЇ

The article provides the analysis of one of the first criminal laws that almost for two centuries had an essential impact on European criminal law. It was the first law that differentiated between crimes, offences, and violations. Such differentiation has survived till these days. Besides, the Article draws an analogy between the types of contraventions under the Criminal Code of France 1810 and the administrative offenses provided for by the Code of Ukraine on the Administrative Offenses. The Article provides an insight into the modern development of French Administrative and Torts Law and into the determination of the police courts authorities. It was found that although the “French” sub-system of law provides for the differentiation between the Administrative and Torts Law and criminal law, such differentiation is just theoretical. On the one hand, the punishment exists in the form of a fine and the types of contraventions are not regulated by the criminal code which makes its criminal character quite doubtful. On the other hand, however, the procedure of the administration of punishment through the imposition of sentence, deprivation of social rights, and seizure of property, as well as the complete regulation of the mentioned issues by the criminal, criminal and procedural laws testify to inseparability of the administrative offenses from the sphere of the criminal law. The article considers the possibility of the regulation of the Administrative and Torts Law of Ukraine so that the types of non-criminal offenses in analogy with the French law are regulated by the industry-specific law without the creation of the codified act in contrast to the outdated Code of Ukraine on the Administrative Offenses. Key words: Criminal Code of France, administrative offenses, police court, Code of Ukraine on the Administrative Offenses.

PRIVATE AND PUBLIC LAW AS INITIAL LEGAL PRINCIPLES IN THE WORKS OF SERGEY SERGEEVICH ALEKSEEV

This topic is updated by the recent change in the nomenclature of legal scientific specialties, where the central place is assigned to public and private law. The purpose of the article is to study the approaches of S.S. Alekseev to the analysis of private and public law; to their interaction and relationship. Special legal, biographical, hermeneutical and comparative legal methods are used. S.S. Alekseev justifies that the main division of law expresses its deep, initial principles, and hence the fundamental features that appear within the framework of these areas of law, each of which is distinguished by a kind of legal instrument. S.S. Alekseev proves that the main division of law expresses its deep, initial principles, and hence the fundamental features that are manifested within the framework of these areas of law, each of which is distinguished by a kind of legal instrument. Public and private law have their own «spirit», the initial beginnings, the principles, features. Moreover, despite the «strength» and the leading nature of public law in modern legal systems, private law is historically and logically the first subsystem of law that laid its fundamental features in general. The two legal subsystems cannot exist without each other. They are inseparable, but everyone has its own tasks, functions, and its own subject of regulation. Public law is necessary for the authorities to regulate their existence and manage the affairs of society, but the state apparatus is less interested in the existence and development of private law. However, without private law, or if it exists, but with serious diminution or deformation, public law also suffers. Private law disappears under socialism and therefore a logical and important result of the study of the teachings of S.S. Alekseev on public and private law today, in the context of the country's transition to democracy, respect for human rights and a market economy, is the conclusion that the revival of private law in Russia is necessary.

Regulating Vessel Discharges on the International and EU Level

Abstract This study analyzes the legal requirements concerning discharges from ships, a matter that is characterized by a considerable degree of complexity. This complexity results, inter alia, from the highly technical nature of the applicable norms, but also from the fact that the relevant rules and principles are prescribed in a wide and often overlapping variety of instruments on different levels of law, namely public international law, European Union law (where applicable) and domestic law. Taking into account that the individual legal instruments within these sub-systems of law significantly differ in their spatial and substantive scopes and regulatory approaches, a risk of conflicts of norms exists both from a vertical (i.e., between different levels of law) and horizontal (i.e., between different instruments on the same level of law) perspective. This situation gives rise to legal uncertainties, which may ultimately threaten the lawful and effective application and implementation of the relevant norms. This study attempts to clarify the existing uncertainties and to suggest harmonized interpretations and applications of the pertinent rules and principles. It does not address the issue of pollution from ships in general, but focuses on three specific categories of vessel discharges, namely scrubber washwater, sewage and ballast water.

CORRUZIONE E VIOLENZA SISTEMICHE: RIFLETTENDO SUL RAPPORTO TRA POLITICA E DIRITTO A PARTIRE DA “TANGENTOPOLI”

Questo lavoro, a partire dalla teoria dei sistemi sociali di N. Luhmann, espone i concetti di “corruzione sistemica” e “violenza sistemica”, analizzando l’impatto dei fenomeni che essi descrivono sui sottosistemi societari del diritto e della politica. Viene studiato un caso concreto, cioè quanto avvenuto in Italia nei primi anni ’90 (il sistema corruttivo denominato “Tangentopoli”, svelato grazie alle indagini di “Mani Pulite”), per identificarne le principali ripercussioni sui diritti umani e i derivanti conflitti tra media, opinione pubblica, potere giudiziario e politico. Attraverso la ricerca bibliografica e il metodo ipotetico-deduttivo, la corruzione viene concepita non soltanto come un crimine, ma come un fenomeno sociale che coinvolge la società nel suo complesso e i cittadini, intesi come individui chiamati a scegliere e ad agire responsabilmente. Proprio in virtù del riferimento ai livelli individuale e interpersonale della vita sociale, le considerazioni fatte possono applicarsi anche a contesti differenti da quello qui analizzato (Italia).
 
 O artigo adota a Teória dos Sistemas Sociais do sociólogo N. Luhmann e fornece um enquadramento dos conceitos de “corrupção sistêmica” e “violência sistêmica”, analisando como os fenômenos que eles descrevem afetam os subsistemas do direito e da política. A análise dos eventos de “Tangentopoli” (Itália), conectados à investigação criminal “Mani Pulite”, tenta identificar concretamente as repercussões no âmbito dos direitos humanos e dos conflitos entre mídia, opinião pública, poderes judiciário e político. Através de pesquisa bibliográfica e documental e do método hipotético-dedutivo, a corrupção é entendida não somente como crime, mas como fenômeno social abrangente, que envolve a sociedade como um todo bem como os cidadãos, entendidos como individuos que no dia dia são chamados para escolhas e açoes responsáveis. Precisamente por esta referência aos níveis individual e interpessoal da vida social, as considerações feitas também podem se aplicar a contextos diferentes do aqui analisado (Itália).

KOMPARASI SYARAT KEABSAHAN “SEBAB YANG HALAL” DALAM PERJANJIAN KONVENSIONAL DAN PERJANJIAN SYARIAH

<p><em>Social relation is a basic need for human beings in the society. Since members of the society are coming from various backgrounds, there should be rules or regulations to be followed by the members of the society. The rules aim at creating safety and comfort in the society and also maintaining a good and harmonious social relation. One of the rules is agreement. There are 3 sub-systems of law in Indonesia i.e. Western Law, Customary Law and Islamic Law. Prior to an agreement, there are requirements needed to be fulfilled so the agreement can be effective as a rule. One of the requirements is “legal cause” which should be studied further by each side due to some differences in conventional agreement and agreement based on Islamic Law in order to prevent unnecessary misunderstanding.</em></p>

Konparasi Syarat Keabsahan “Sebab Yang Halal” Dalam Perjanjian Konvensional Dan Perjanjian Syariah

As social beings, social relations are fundamental and inseparable. Social interaction that has many differences requires the existence of a specific guidance or law adopted by the community. The law is for the sake of realizing a sense of security and assured in establishing community relations, as well as to realize a good social relationship, harmonious and without having to harm others. A specific form of guidance in society is the agreement. Indonesia has three sub-systems of law that are broadly divided into namely western law, customary law, and Islamic law. The procurement of agreements in order to increase security and certainty is already inevitable in the modern era, which is rapidly growing as it is today. Therefore, before entering into an agreement, it is necessary to comply with all conditions of the validity of the agreement in order for the agreement to become valid as a law so that the purpose of the agreement can be reached. One of the terms of the validity of the treaty that is "lawful cause" is an important thing to be studied deeply by the parties who make the contract because of the difference of the legal system in its environment (Indonesia) is mainly the conventional agreement system which is used as the standard of legislation in Indonesia and the system Islamic agreement or sharia that is used as the guidance of the majority of Indonesian people who are Muslims, so that there are no things that do not want inflicted in the future

Searching for Coherence in Trade and Investment Arbitration: Domestic Policies Under Siege

In this paper, I highlight that international investment law, as a subsystem, should evolve to accept rules from other subsystems of law, e.g., human rights, trade (WTO law and RTA law), and environmental. This proposed evolution would need to include the acceptance of new tools that would help to expand the traditional sources of international law when dealing with fragmentation problems. Those tools would be used as connecting rules (Drive-Chains) among the fragmented subsystems when reviewing justifications not provided in investment treaties, giving coherence, predictability and legitimacy to the investment subsystem with others subsystems of law.

Types of autonomous law and understanding of legal pluralism

Just as there isn't a generally accepted meaning of the term law, there still isn't a completely clear and defined meaning of the term autonomous law. There is a big interest for the autonomous law in practice and theory, sociology and law anthropology. Five main meanings are attributed to this term: autonomous law as a theoretic notion, a subsystem of law, source of law, law of work and autonomous identity law. When it comes to autonomous law as a theoretic notion it is closely linked with the idea of legal pluralism. This paper follows the development of the understanding of legal pluralism from Duguit, Ehrlich, Petrazycki, Gurvitch, through, Evan, Llewellyn, Hobel, to Vanderlinden and Jean-Guy Belley. The paper ends with 'a new legal pluralism' which has a tendency to become the only right school (legal orthodoxy).

Sistem Pembiayaan Berdasarkan Prinsip Syariah (Suatu Tinjauan Yuridis Terhadap Praktek Pembiayaan di Perbankan Syariah di Indonesia)

This research aims at knowing sub system of law about the finance based on Syariah principle in Indonesia by method normative judicial approach not Islamic jurisprudence approach because the dispute finance have to solve by civil law of Indonesia. The research shows that finance based on Syariah principle have subsystems are profit sharing system, sale system and lease system.

The Dematerialization of Print and the Fate of Copyright

This paper contends that copyright is a product of the invention of print. Before that time, writings were seen as part of the common heritage of humanity and if someone copied a book by hand they deserved the right to own the copy. The digitalization of not only print, but also intellectual products such as music, graphics and video has caused problems more deep-seated than many copyright lawyers would admit to. In fact, a paradigm shift has occurred with information at the core. The older paradigm comes from the world of Descartes and Newton and focuses on material things. The legal system of that era correspondingly focused on material things, making it impossible to own, possess or have any other real right in incorporeals. To cover intellectual property a special subsystem of law was designed which is now starting to show the strain. It is argued that information ages quickly and by over-protecting it one loses the value of the asset. Power and wealth will come from transmitting and adding value to information. In this regard personal rights might be more valuable than real or intellectual property rights, unless the latter adapts to change more rapidly.