In this article we examine the role of Entscheider (decision-makers) in the German asylum procedure, both legally and ethical. As the responsibility for deciding on asylum applications lies exclusively with them, their significance for the German asylum procedure can hardly be underestimated. However, over the last few decades the situation of Entscheider changed significantly: While the number and complexity of the cases they have to decide on has increased due to the growing immigration, (...) the requirements for their education have been lowered, owed to critical amendments to the relevant law. We analyze how the law currently defines the role of Entscheider, whether the legal framework is constitutional, and what modifications morality requires. Although the law defining their role seems to be constitutional, Entscheider’s education must be improved and they must be entrusted with the hearing of the applicants to meet what morality requires, we conclude. DOI: 10.17879/95189429199. (shrink)

The present article is aimed at substantiating the differentiation of the criminal procedure involving the disabled persons as well as at assessing some standards of protection of rights of the latter participants of the procedure, established in the Code of Criminal Procedure of the Republic of Lithuania. The provisions of the Constitutional Court of the Republic of Lithuania, given in the present article, enabled generalizing the following two aspects. The first aspect covers the substantiation of the criminal (...) procedure relating to the criminal acts that the physically or mentally disabled persons are suspected (accused) of and application of compulsory medical measures. Specific form of criminal procedure – procedure of application of compulsory medical measures – institution of criminal procedure, covering several closely interdependent legal norms, establishing particular legal specifics of investigation of criminal act and hearing, is established in the separate structural part (Chapter XXIX) of the Code of Criminal Procedure of the Republic of Lithuania. Moreover, though the criminal procedure relating to the acts that the physically or mentally disabled persons are suspected (accused) of is not governed in one place of the Code of Criminal Procedure, it is deemed to be a specific form of criminal procedure, since it constitutes particular related legal norms of criminal procedure, determining the exceptions of the general criminal procedure. The second aspect, related to the constitutional doctrine concerning the equality principle, enabled substantiating the specific legal regulation, established and applied to the disabled participants (suspected persons, accused persons, witnesses, aggrieved persons) in the Law on Criminal Procedure. (shrink)

Post–World War II developments concerning citizenship and access as one of the dimensions of citizenship are examined through the prism of noncitizenship and rights, using the drafting of the asylum paragraph of the 1949 Grundgesetz of the Federal Republic of Germany as a specific case study. The aim of this article is to look into the creation of the right to asylum in West Germany, to examine its political history by exploring its development and by searching for its (...) conceptual, political, and rhetorical origins. The article investigates the birth of the unique conceptualization of asylum in the debates of the Parliamentary Council, the constitutional and quasi-parliamentary assembly responsible for the writing of the postwar Basic Law, and examines the political choices, motivations, and compromises behind its creation. To connect the matter of asylum to a wider problematic related to noncitizens and rights, the article benefits from the political philosophy of Hannah Arendt, with reference to her writings on human rights and refugees in the immediate post–World War II period. (shrink)

Asylum seekers who claim asylum in the United Kingdom flee from a diverse range of threats of persecution, particularly in the MENA (Middle East & North African) region. These threats may comprise of war, tribal violence and trafficking to honour-killings, female genital mutilation and witchcraft. Some of these threats may be alien to Western immigration tribunals as they either do not occur in their respective countries or are not understood, particularly because of the intricate religious and cultural nature (...) of the threat in question. For example, a single woman who has had sexual relations outside of marriage would be regarded as having insulted tribal and familial honour in some regions of MENA countries. Here, the word ‘tribe’, which in Arabic is _‘qabilah’_, has a distinct historical, cultural and lexical meaning that lawyers, judges and policy-makers may not be aware of; the same may be said of _‘nikah’_ (marriage) or _‘Voodoo’_ (a type of witchcraft) and many other terminologies. These terminologies are intimately linked to the experiences of immigration applicants and asylum seekers who desire to express their fear of persecution to lawyers, judges and policymakers. Using two real-life case studies involving a Yemeni immigration applicant and Nigerian asylum seeker respectively and my practitioner experience as a country expert having written 140 reports, I will critically explore the value of a primary, semiotic understanding of key religious, cultural and linguistic dimensions in asylum claims (as opposed to secondary source evidence). I argue that the UK’s immigration tribunal system should place more value on how language is embodied within the MENA regions. I do not wish to just highlight this issue but semiotically analyse immigration and asylum procedure, the arguments of the Home Office and tribunals in accepting or rejecting claims and suggest substantive reform by broadening the nature of evidence. Using Peirce’s framework of semiotics, a sign (representamen) is the fundamental entry point to comprehend an object—an object being the referent of a sign. Once we understand a sign and its object, we arrive at the interpretant which is the sense or meaning derived from the object. This triad relationship of sign, object and interpretant constitutes semiois. Here, I argue that analysing the nature of a sign and what it purports to represent can provide us with a theoretical basis by which to reformulate the mechanisms which judges and lawyers use to understand religious, cultural and linguistic evidence in asylum claims. It is through signs that we can arrive at a deeper meaning and the larger picture of the intricate components of an asylum seeker’s claim thereby accessing their semiotic code. (shrink)

The purpose of this paper is to center our thoughts in the metaphysics and ethics of Hegel´s works, pointing out the relationship between the subject, the law and history. This theme arises from an interest in the text on Phenomenology found in the Prologue, number 11.1, entitled “The concept ..

Increasingly, international governmental networks and organisations make it necessary to master the legal principles of other jurisdictions. Since the advent of international criminal tribunals this need has fully reached criminal law. A large part of their work is based on comparative research. The legal systems which contribute most to this systemic discussion are common law and civil law, sometimes called continental law. So far this dialogue appears to have been dominated by the former. While there are many reasons for this, (...) one stands out very clearly: Language. English has become the lingua franca of international legal research. The present book addresses this issue. Thomas Vormbaum is one of the foremost German legal historians and the book's original has become a cornerstone of research into the history of German criminal law beyond doctrinal expositions; it allows a look at the system's genesis, its ideological, political and cultural roots. In the field of comparative research, it is of the utmost importance to have an understanding of the law's provenance, in other words its historical DNA. (shrink)

Cuidados paliativos: solución ética acorde con la dignidad humana al final de la vida Cuidados paliativos: solução ética de acordo com a dignidade humana no final da vida It is said that passing laws to legalize euthanasia is absolutely necessary but, in my opinion, it is more pressing to enact a law for the patient to access a universal palliative care service at the end of their life than a law on euthanasia. This article discusses the difference between euthanasia and (...) palliative care. It is affirmed that being in favor of the latter does not mean wanting the patient to be in pain and to suffer, nor extending their life unreasonably. However, opting for palliative care is, on the one hand, what the physician can ethically do as a health worker and, on the other, the only morally acceptable alternative to the natural end of human beings that is appropriate to their dignity. Therefore, palliative care immerses us in an anthropological reflection about our own limitation and fragility, since respect for human life and palliative care dignify the process of dying. Para citar este artículo / To reference this article / Para citar este artigo Zurriaráin RG. Cuidados paliativos: solución ética acorde con la dignidad humana al final de la vida. Pers Bioet. 2019; 23: 180-193. DOI: https://doi.org/10.5294/pebi.2019.23.2.2 Recibido: 08/04/2019 Aceptado: 24/07/2019. (shrink)

This paper examines recent attempts to defend Rule-Consequentialism against a traditional objection. That objection takes the form of a dilemma, that either Rule-Consequentialism collapses into Act-Consequentialism or it is incoherent. Attempts to avoid this dilemma based on the idea that using RC has better results than using AC are rejected on the grounds that they conflate the ideas of a criterion of rightness and a decision procedure. Other strategies, Brad Hooker's prominent amongst them, involving the thought that RC need (...) contain no overarching concern to maximize the good are acknowledged to avoid the original dilemma, but lead to further problems of motivating and justifying RC in the absence of such a concern. The paper argues that Hooker's attempt to deal with these problems by using a 'Reflective Equilibrium plus method is unsuccessful. (shrink)

This paper analyses the Verlagsanzeige of the humanist, mathematician, astronomer and publisher Johannes Regiomontanus. How is humanism expressed in this famous document from German early printing and what is its relationship to philosophy? The article shows that Regiomontanus advocated a special form of humanism that went beyond the standard humanism that he valued, with ‘truth’ as its most important aspect. From the epistemological perspective of the history of philosophy in Regiomontanus’s publishing programme, the ‘truth’ of mathematics is seen, analogous (...) to some predecessors, as a paradigm of programmatic testimony. The integration of philosophy is evident in this, as in another specified way as well. (shrink)

ObjectiveStress can play a role in the onset and exacerbation of psoriasis. Psychological interventions to reduce stress have been shown to improve psychological and psoriasis-related outcomes. This pilot randomised study investigated the feasibility of a brief interaction with a Paro robot to reduce stress and improve skin parameters, after a stressor, in patients with psoriasis.MethodsAround 25 patients with psoriasis participated in a laboratory stress task, before being randomised to either interact with a Paro robot or sit quietly for 30 min. (...) Raman spectroscopy and trans-epidermal water loss were measured at baseline, after the stressor and after the intervention as indexes of acute skin changes. Psychological variables, including self-reported stress and affect, were also measured at the three time-points.ResultsNo statistically significant differences between the two conditions were found for any of the outcomes measured. However, effect sizes suggest significance could be possible with a larger sample size. Changes in the psychological and Raman spectroscopy outcomes across the experimental session were found, indicating the feasibility of the procedures.ConclusionThis pilot study showed that a brief interaction with a Paro robot was a feasible intervention for patients with psoriasis, but future trials should broaden the inclusion criteria to try to increase recruitment rates. Studying people who are highly stressed, depressed or who are stress-responders may increase the power of the intervention to show effects using a longer-term intervention. (shrink)

The parties of the criminal process, possessing the same procedural status (the suspects, indictees), must also have the same rights and obligations; however, if such “differences” as mental disability exists between them, discrimination of the rights and obligations is objectively justifiable. Otherwise, deviation from the constitutional principles of equality between the lawful state and the persons would occur.The article is aimed at substantiating the suspect’s (indictee’s) procedural capability, which is predetermined by the person’s psychic condition. The article starts with an (...) analysis of the category of the general procedural legal subjectivity, which is composed of the procedural legal capacity and the procedural capability. It is stressed that the problem with the suspect’s (indictee’s) procedural subjectivity is related to the items on acquisition of the party’s possibility (permission) to act and on the realization of this possibility (making use of the subjective rights and implementation of the legal obligations) in the course of the process. The Constitutional Court of the Republic of Lithuania has noted that, generally speaking, legal subjectivity is to be considered as a tool for defending one’s rightful interests. The criminal procedural capability, which is not legally consolidated in Lithuania, contrariwise to the civil procedural capability, is investigated further on in the article. The author submits several scientific provisions, with the help of which she reveals the content of the suspects’ (indictees’) procedural capability via the criteria of his/her intellect and will. Certain points of contact of substantiation of such procedural capability, with the doctrine of the countries, which practice both general and continental law, are indicated. (shrink)

Even though the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not explicitly address the rights of asylum seekers and refugees, the case law of the European Human Rights Court (ECtHR) confirms that their rights can be successfully defended under this mechanism. In parallel, in its evolving jurisprudence on asylum the Court of Justice of the European Union (CJEU) refers to the Strasbourg case law, where there is a certain interrelationship between these two jurisdictions, (...) in particular given the recent ECtHR pronouncement on “EU Dublin transfers”. The article aims at evaluating protection available for asylum seekers and refugees under the ECHR, while comparing it with protection of asylum relevant fundamental rights under the EU legal order and the most recent jurisprudence of the CJEU in asylum cases. The authors also analyze which of the two systems is more favourable and what are their limitations. Thus, the article offers to students and practitioners a detailed analysis of ECtHR and CJEU jurisprudence in asylum cases through a comparative perspective, as well as the key problematic aspects arising in both jurisdictions and their junction. The jurisprudence of the ECtHR reveals that despite the most developed protection from expulsion under Article 3 of the ECHR, it does not sufficiently secure status for the concerned persons. Effective remedy requirements under the ECHR allow for filling the gaps of national asylum procedures, while recognition of vulnerability and special status of asylum seekers by the ECtHR assist in addressing still commonly prevailing detention problems of asylum seekers in Europe. In the context of family protection, the recognition of positive obligations by states to reunite the refugee families is still rudimentary, thus, clearly Article 3 protection in expulsion cases takes over Article 8. At the same time, the jurisprudence of the CJEU in asylum cases is still inconsistent, as the court sometimes takes decisions without including human rights into its’ analysis (Kadzoev, Arslan, K.), while in other cases refers to the Charter (MA and others), verifies if its’ own decision is in line with the ECtHR jurisprudence (Elgafaji) or shapes secondary legislation in line with Strasbourg arguments and findings (N.S.). Quite likely, the ECtHR practice will have an important influence on the developments of subsidiary protection in the EU, at least in the context of Articles 2 and 3 of the ECHR, and serve as an important reference for interpretation of various concepts under the EU Qualification and Procedures Directives. The comparative analysis of pros and cons of the two mechanisms demonstrates that the main advantage of the ECtHR is individual justice possibility, which is not yet accessible under CJEU preliminary judgement procedure and its input in developing asylum law concepts, such as non-state agents of persecution, internal protection or even subsidiary protection regime under EU asylum law. Thanks to the ECtHR, the realistic possibility to question the application of certain EU norms has emerged (Dublin Regulation). While the ECtHR does not have such a specific competence over asylum issues as the CJEU and is clearly a slow and seriously overburdened mechanism, the pilot judgement procedure seems to be increasingly capable of providing guidelines to the states concerning systematic problems in their asylum procedures. Thus, both jurisdictions in their own ways contribute to strengthening asylum seekers’ protection while forming a common oasis for these individuals in Europe. (shrink)

This article seeks to contribute towards the emergent field of law and emotion by offering a multi-perspectival study that combines legal, philosophical and empirical considerations into an interdisciplinary research on shame in the German courts of lower and middle instance. On the basis of this joint theory, the study proposes the existence of law-relevant emotions, whose relevance could be argued phenomenologically and validated empirically; hence, the main claim of this study: in the courtroom emotions are communicated for specific procedural (...) purposes. The interdisciplinary nature of the study enables us to determine the role and function of shame in an institutional setting, its relation to other emotions and, more importantly, obtain the sense of shame as it acquires a specific institutional relevance. (shrink)

Selective attention depends on goal-directed and stimulus-driven modulatory factors, each relayed by different brain rhythms. Under certain circumstances, stress-related states can change the balance between goal-directed and stimulus-driven factors. However, the neuronal mechanisms underlying these changes remain unclear. In this study, we explored how psychosocial stress can modulate brain rhythms during an attentional task and a task-free period. We recorded the EEG and ECG activity of 42 healthy participants subjected to either the Trier Social Stress Test, a controlled procedure (...) to induce stress, or a comparable control protocol, flanked by an attentional task, a 90 s of task-free period and a state of anxiety questionnaire. We observed that psychosocial stress induced an increase in heart rate, self-reported anxiety, and alpha power synchronization. Also, psychosocial stress evoked a relative beta power increase during correct trials of the attentional task, which correlates positively with anxiety and heart rate increase, and inversely with attentional accuracy. These results suggest that psychosocial stress affects performance by redirecting attentional resources toward internal threat-related thoughts. An increment of endogenous top-down modulation reflected an increased beta-band activity that may serve as a compensatory mechanism to redirect attentional resources toward the ongoing task. The data obtained here may contribute to designing new ways of clinical management of the human stress response in the future and could help to minimize the damaging effects of persistent stressful experiences. (shrink)

In the past, only norms and rules developed for other types of illegal activities could be applied to misconduct in science in Germany. But only particularly blatant cases of misconduct can be dealt with efficiently in this way. Nowadays, a couple of very important funding agencies and research institutions have enacted special procedures that apply in cases of suspected scientific misconduct. A strongly decentralised system of dealing with misconduct in science is being established in Germany.

The question of detention of asylum seekers is specific due to the special situation of detainees (persons who have experienced human rights violations and apply for asylum in receiving country) and due to peculiarities of detention itself (persons have not committed crimes, but come or stay illegally because they have been forced to do so by fleeing from human rights violations). Therefore, lately it raises many discussions at the European level. Sooner or later, discussions influence national laws, as (...) after adopting the EU directives their provisions must be properly transposed into national laws. This article describes the recent documents: the study in Lithuania, the UNHCR guidelines, the EU developments, the Lithuania judicial practice. The authors of the article discuss the latest amendments of the Law on the Legal Status of Aliens (entering into force on 1 February 2012) related to detention of asylum seekers after the transposition of the provisions of the Return Directive. The practice of the Supreme Administrative Court of Lithuania when applying the new detention-related provisions is also reviewed in the article. The authors do not agree with the position of the Supreme Administrative Court of Lithuania that the provisions of the Return Directive are applicable to asylum seekers. The authors pay attention to the case-law of the European Court of Justice, the preamble of the Return Directive and its legal relations with the EU asylum directives. At the end, the conclusions are drawn as to the way that the provisions of the Law on the Legal Status of Aliens should be interpreted in the light of the purposes and provisions of the European Union directives. In order to avoid contradictory practice and at the same time ensure the interests of public order in Lithuania, Article 113(7) of the Law on the Legal Status of Aliens could be applied. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws (...) in action. (shrink)

Criminal law exceptionalism, or so I suggest, has turned into an ideology in German and Continental criminal law theory. It rests on interrelated claims about the (ideal or real) extraordinary qualities and properties of the criminal law and has led to exceptional doctrines in constitutional criminal law and criminal law theory. It prima facie paradoxically perpetuates and conserves the criminal law, and all too often leads to ideological thoughtlessness, which may blind us to the dark sides of criminal laws (...) in action. (shrink)

Starting from 2009, national courts of the EU Member States for the first time gained a “real” right to request the EU Court of Justice for preliminary rulings in asylum matters. First judgments of this Court demonstrate equivocal tendencies: some are blaming the Court for incompetence in asylum matters, others believe that the adoption of authoritative decisions at the European level will assist in developing consistent practice of applying asylum law in the European Union, something that failed (...) at international level due to absence of a single authoritative body to provide guidance on interpretation and application of the 1951 Refugee Convention. Considering that the judgments of the EU Court are part of the EU law, the Member States should develop their national asylum law with due regard being taken to those judgments. By the beginning of 2012, the Court has issued eight judgments on the interpretation of various problematic issues of EU asylum law. This Article analyses the jurisprudence of the EU Court in asylum cases, related to the granting of refugee status and subsidiary protection. It also provides a critical evaluation of those judgments. The main objective of the Article is to familiarise the relevant Lithuanian institutions and lawyers with the first judgments of the EU Court in asylum cases and encourage discussions concerning the application of rules established by the Court in the Lithuanian context. Due to limited size, this Article presents the analysis of two EU Court judgments adopted on interpretation of the 2004 Qualification Directive: Elgafaji v. The Netherlands (2009) dealing with granting of subsidiary protection, and Abdulla and others v. Bundesrepublik Deutschland (2010), dealing with cessation of refugee status. The value of those judgments first of all lies in the guidance they provided to the Member States on such concepts as: protection in a situation of an armed conflict, agents of protection, effectiveness of protection; as well as determination of a relationship between refugee status and subsidiary protection, relationship of the Qualification Directive with the European Convention on Human Rights and Fundamental Freedoms (ECHR), also cessation of protection. Elgafaji decision, while quite liberal with regard to persons seeking international protection, is not so liberally applied in the Member States’ practice and does not in itself guarantee positive outcome of the application of a concrete individual fleeing from an armed conflict, or a liberal approach to granting subsidiary protection in the Member States. Based on Elgafaji judgment it is clear that: Art. 15(b) of the Qualification Directive correspond to Art. 3 ECHR, while Art. 15(c) provides additional protection and in that it expands the Member States’ obligations beyond the ECHR to provide protection to persons fleeing in situations of armed conflict. While not every person arriving from an armed conflict situation would automatically fall under the granting of subsidiary protection, in certain exceptional situations indiscriminate violence may amount to individual threat without invoking personal circumstances. The EU Court departed from the individualisation requirement applied by the European Court of Human Rights in Art. 3 cases and did not also rely on international humanitarian law, by introducing a “sliding scale” formula for establishing an individual threat in armed conflict situation instead. This formula addressed the alleged internal discrepancy between “individual threat” and “indiscriminate violence”. The Abdulla decision brought in the human rights and law enforcement perspectives to the interpretation of cessation clauses, however it represents a rather superficial approach in the context of the analysed concepts (e.g. towards effectiveness of protection provided by the multinational armed forces) and is likely to be incompatible with the latest legislative trends in the EU asylum instruments (e.g. determination of refugee status and subsidiary protection by means of a single procedure) and the recent jurisprudence under the ECHR (e.g. failure to ensure a minimum standard of living may violate the ECHR). (shrink)

The presumption of innocence is not a presumption but an assumption or legal fiction. It requires agents of the state to treat a suspect or defendant in the criminal process as if he were in fact innocent. The presumption of innocence has a limited field of application. It applies only to agents of the state, and only during the criminal process. The presumption of innocence as such does not determine the amount of evidence necessary to find a defendant guilty. In (...) spite of these limits, the presumption of innocence protects suspects and defendants from specific dangers inherent in the criminal process. German procedure law is used to show these areas. (shrink)

Imagine the following. You have been asked to critically evaluate the criminal process in your home jurisdiction. In particular, you have been asked to determine whether the criminal process currently in place appropriately balances the need to maximize the chances of getting things right—of acquitting the innocent and convicting the guilty—with the need to minimize the chances of getting things wrong—of acquitting the guilty and convicting the innocent. How would you proceed? What rules of evidence and procedure would you (...) put in place? Would you exclude germane inculpatory evidence that has been obtained in violation of the accused’s constitutional rights? Would you permit spouses to testify against each other, or allow the jury to draw adverse inferences from an accused’s failure to testify on his or her behalf? These are the sorts of epistemological issues addressed by Larry Laudan in his superb Truth, Error, and Criminal Law. The purpose of legal epistemology is to identify legal rules in order to assess them rationally, and, if necessary, to modify or replace them. The more and more widely Truth, Error, and Criminal Law is read, the more likely it is that legal epistemology will attract the attention of lawyers, legal academics, and philosophers, attention that can only contribute in a positive way to rethinking criminal law. (shrink)

The trans-jurisdictional discourse on criminal justice is often hampered by mutual misunderstandings. The translation of legal concepts from English into other languages and vice versa is subject to ambiguity and potential error: the same term may assume different meanings in different legal contexts. More importantly, legal systems may choose differing theoretical or policy approaches to resolving the same issues, which sometimes – but not always – lead to similar outcomes. This book is the second volume of a series in which (...) eminent scholars from German-speaking and Anglo-American jurisdictions work together on comparative essays that explore foundational concepts of criminal law and procedure. Each topic is illuminated from German and Anglo-American perspectives, and differences and similarities are analysed. (shrink)

In the last two decades, the philosophy of criminal law has undergone a vibrant revival in Canada. The adoption of the Charter of Rights and Freedoms has given the Supreme Court of Canada unprecedented latitude to engage with principles of legal, moral, and political philosophy when elaborating its criminal law jurisprudence. Canadian scholars have followed suit by paying increased attention to the philosophical foundations of domestic criminal law. Because of Canada's leadership in international criminal law, both at the level of (...) the International Criminal Court and of specific war crimes tribunals, they have also begun to turn their attention to international criminal law per se. This collection seeks to bring all these Canadian voices together for the first time, and evidence the fact that criminal law theory is no longer to be associated exclusively with the older British, German and American traditions. The topics covered include questions of philosophical methodology, the legitimate scope of domestic and international criminalization, rationales for criminal law defences in both domestic and international law, the philosophical underpinnings of specific crimes and forms of joint responsibility, as well as the theorization of criminal procedure and evidence law. ENDORSEMENTS "In continental Europe, academic commentary on the criminal law has long manifested large philosophical ambitions. Less so in common-law countries, where the dominance of jury trial and the piecemeal development of case-law, together with the famously robust attitudes of common lawyers, have militated against detailed philosophical engagement with doctrine. Over the last 20 years or so, however, new generations of philosophically-literate lawyers and legally-informed philosophers have overcome the historic resistance. Nowhere more so, it seems, than in Canada, where the common law and civilian traditions meet. In 'Rethinking Criminal Law Theory', François Tanguay-Renaud and James Stribopoulos have joined with 14 talented Canadian colleagues to showcase the tremendous breadth and depth of their contemporary national contribution to the subject. Ranging across topics as diverse as emergency, obscenity, and insanity, these essays - without exception insightful and penetrating -set a high standard for the rest of us to aspire to.'' John Gardner, University of Oxford "'Rethinking Criminal Law Theory' is an excellent collection of essays demonstrating the vigour, creativity and range of Canadian criminal justice scholarship. It covers a wide range of problems and issues both in the domestic and the international context. Core questions are examined in depth and new questions are brought to the fore. I recommend it very highly to criminal lawyers and philosophers of the criminal law." Professor Victor Tadros, University of Warwick "'Rethinking Criminal Law Theory 'is packed with outstanding contributions from criminal law theorists who are among the best not only in Canada, but in the whole English-speaking world. Broad and deep in its coverage, the collection offers fresh approaches to a wide range of cutting-edge issues in the field. It provides a resource readers will come back to repeatedly." Stuart Green, Professor of Law and Justice Nathan L Jacobs Scholar, Rutgers University. (shrink)

The obligation to provide reasons may appear rather a simple and straightforward, but in actual practice—as the mutually antagonistic Weiss rulings of the CJEU and the German Bundesverfassungsgericht amply demonstrate—is fraught with constitutional complication. On the one side, there lies the concern with a deeply intrusive form of judicial review which substitutes judicially determined “good” reasons for those of the reviewee decisionmaker—legislatures, administrative agencies, or, as in Weiss, the European Central Bank. On the other side lies the concern with (...) judicial abdication in the face of technical expertise, uncertainty and complexity, turning the reason-giving requirement into a mere façade thereby placing democratic accountability in the modern administrative state beyond law’s remit. Either way, normatively and conceptually, we seem left with a half-way house only. Drawing on the recent US administrative law discourse—the neo-Fullerian concept of an “internal morality of law” and democratic experimentalism —this paper explores the concept of process review as tertium datur. Process review responds to concerns over the rule of law and administrative discretion through indirect, procedural safeguards, by imposing requirements of reasoned justification, rather than through wholesale invalidation or aggressive substantive review. (shrink)

This chapter reexamines the case law of the Court of Justice of the European Union (CJEU) through the prism of the modern structure of the foundational treaties of the EU: the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty has reshaped the structure of the positive law of the EU, marking a new stage in the process of creating a closer union. For EU procedural law, this has led to (...) the formal establishment of three focal points which reflect the issues involved. At one extreme, are general principles of EU law, which have constitutional status including the general principle of effective judicial protection. In the middle of the spectrum are two provisions which recognize the balancing of national and EU interests required at the procedural level. Finally, the treaties recognize the possibility for substantive regulation at the EU level. (shrink)

Many studies have highlighted a substantial "bureaucracy domination" in procedures relating to migrants’ access to territory. This form of domination is marked by highly discretionary and arbitrary practices, enacted by the administrative authorities of the state. Only minor attention, however, has been devoted to the arbitrariness of judicial decisions and to the judicial role in general in the numerous proceedings that increasingly affect the path of migrants. This path is the main object of this paper. The study focuses on Italian (...) case law in expulsion and detention proceedings of irregular third country national citizens and asylum seekers and presents qualitative empirical research on decisions issued by the competent national authorities. The results have been analysed using a selection of theoretical tools, all referable to the general concept of the rule of law. The judicial decisions on pre-removal detention proceedings in two case studies are examined: the jurisprudence on detention of irregular migrants, in different offices of the Justice of the Peace in Italy; and the case law on detention of asylum seekers in the Ordinary Tribunal of Rome. The assumption underlying the research is that various conceptions of the rule of law may have different explanatory power when it comes to explaining the empirical results. To verify this hypothesis, the study proposes an overview of the main rule of law doctrines in the Western tradition of political and legal thought and applies the method of historical-conceptual analysis. As a result, the explanatory power of six theoretical models of the rule of law was verified against the data with the view to highlight the virtues and vices of the respective explanatory frameworks. This article reaches a two-fold conclusion. First, as far as the explanatory frameworks are concerned: the results of the two case studies cannot be fully explained by any of the models considered in this study. This fact alone casts doubts on the explanatory power of these theories and calls for further research on judicial decision-making more generally. Secondly, a key finding of the study regarding the notions of discretion and arbitrariness is that the judicial approach which assures the highest protection of rights is also the one that is most easily influenced by arbitrariness. The author argues that this paradox can be easily dissolved by paying attention to the plural dimensions of arbitrariness. If we consider arbitrariness from a legal point of view, i.e. as an illegal decision, it is unsurprising that the authority that most uses its discretionary powers is also the one most at risk of abusing these discretionary powers and hence of exercising arbitrary power. However, if we consider arbitrariness from the point of view of philosophical-political theory, i.e. as a form of domination characterised by the absence of sufficient justification, it is unsurprising that the judicial approach which assures the highest protection of rights is also the one that takes its own role as guarantor of these rights and of the constitutional democratic legal order as such most seriously. This judicial approach thus most often risks exercising its power in criticisable ways, as compared to an authority much more in line with the requirements of law enforcement agencies. Keywords: migration, discretion, justice, arbitrariness, civil rights, Rechtsstaat, expulsion, mixed constitution. (shrink)

Constitutional and judicial law-making is increasingly beginning to find its reflection not only in the Anglo-Saxon, but also in the Romano-Germanic legal family. However, the prerequisites for the use of this legal instrument are different, which determines the relevance of conducting a comparative analysis regarding the provision of such a mechanism in the USA and Kazakhstan. The purpose of the research is to identify common and distinctive features in the process of implementation of constitutional and judicial law-making in countries belonging (...) to different legal systems. The article uses the methods of analysis, synthesis, comparison, deduction and generalization. As a result, the specificity of ensuring the mechanism of constitutional law-making in the USA was expressed, taking into account various forms of law-making activity. It has been established that the development of constitutional provisions in the United States takes place with the help of the constitutional doctrines of the Supreme Court of the United States, which provide for the introduction of amendments to constitutional provisions without a formal procedure. As a result of the study of the experience of Kazakhstan, it was established that special priority was given to the role of precedent, in particular, the decision of the Supreme Court of the Republic of Kazakhstan. This is explained by the integrative nature of the Romano-Germanic legal system, which allows effective development of national legislation as a whole and its provisions. The obtained results can be used during the professional training of judges in the Republic of Kazakhstan. (shrink)

In several jurisdictions, irremediable suffering from a medical condition is a legal requirement for access to assisted dying. According to the expressivist objection, allowing assisted dying for a specific group of persons, such as those with irremediable medical conditions, expresses the judgment that their lives are not worth living. While the expressivist objection has often been used to argue that assisted dying should not be legalised, I show that there is an alternative solution available to its proponents. An autonomy-based approach (...) to assisted suicide regards the provision of assisted suicide (but not euthanasia) as justified when it is autonomously requested by a person, irrespective of whether this is in her best interests. Such an approach has been put forward by a recent judgment of the German Federal Constitutional Court, which understands assisted suicide as an expression of the person’s right to a self-determined death. It does not allow for beneficence-based restrictions regarding the person’s suffering or medical diagnosis and therefore avoids the expressivist objection. I argue that on an autonomy-based approach, assisted suicide should not be understood as a medical procedure but rather as the person’s autonomous action. (shrink)

The present article is aimed at dealing with certain questions of compensation for damage, caused by the criminally insane person. Disposal of a civil action on compensation for damage, caused by the criminally insane person, in the criminal procedure is analyzed in the first part of the article. The subjects, who are responsible for compensating for damage, caused by the criminally insane person’s deed, are dealt with in the second part. Not only the respective rules of law, stated in (...) the Civil Code of the Republic of Lithuania and in the Criminal Process Code of the Republic of Lithuania, are systemically analyzed in the present article, but the court practice is considered from the aspect of the items, which are relevant to the theme under investigation, and is systematized. (shrink)

Arthur Kaufmann is one of the most prominent figures among the contemporary philosophers of law in German speaking countries. For many years he was a director of the Institute of Philosophy of Law and Computer Sciences for Law at the University in Munich. Presently, he is a retired professor of this university. Rare in the contemporary legal thought, Arthur Kaufmann's philosophy of law is one with the highest ambitions — it aspires to pinpoint the ultimate foundations of law by (...) explicitly proposing an ontology, a general theory of knowledge and concept of a person. Kaufmann's work derives, first of all, from the thinking of Gustav Radburch, his teacher, and then from ideas of Karl Engish and Hans-Georg Gadamer. The philosophy undertakes to pursue the ultimate foundation of law, law which is understood by Kaufmann, first of all, as a "concrete judgement" that is, what is right in a concrete situation. Justice belongs to the essence of law and "unjust law" is contradictio in adiectio. Kaufmann opposes all those theories, which as the only foundation for establishing just law (Recht) adopt legal norms (Gesetz). In Kaufmann's opinion , such theories are powerless in the face of all types of distortions of law rendered by political forces. He suggests that the basic phenomenon which needs to be explained and which cannot be disregarded by a philosopher of law is so-called "legal lawlessness" ("Gestzliches Unrecht"). "Legal lawlessness" which forms a part of life experience for the people of twentieth century totalitarian states. It proved "with the accuracy of scientific experiment" that the reality of law consists of something more than bare conformity with legal norms. The existence of lex corrupta indicates that law contains something "non-dispositive" which requires acknowledgment of both law-maker and judge. Kaufmann, accepting the convergent concept of truth and cognition, assumes that "non-dispositive" content, emerging as the conformity of a number of cognitive acts of different subjects (inter-subjective communicativeness and verifiability), indicates the presence of being in this cognition. The questions "What is law?" and "What are the principles of a just solution?" lead straight to the ontology of law, to the question about the ontological foundations of law. Kaufmann discerns the ontological foundations of law in the specifically understood "nature of things" and, ultimately, in a "person". He proposes a procedural theory of justice, founded on a "person". In my work, I undertake to reconstruct the train of thought which led Kaufmann to the recognition of a "person" as the ontological foundation of law. In the first part, the conception of philosophy adopted by Kaufmann, initial characteristics of law — of reality which is the subject of analysis, as well as, the requirements for proper philosophical explanation of law posed by Kaufmann are introduced. In the second, Kaufmann's reconstruction of the process of the realisation of law is presented. Next, the conception of analogy which Kaufmann uses when explaining law is analyzed. In the fourth part, Kaufmann's conception of ontological foundations of law is discussed. A critical analysis is carried out in which I demonstrate that the theory of the ontological foundation of law proposed by Kaufmann and the concept of a person included in it do not allow a satisfac¬tory explanation of the phenomenon of "legal lawlessness" and lead to a number of difficulties in the philosophical explanation of law. Finally, the perspectives of a proper formulation of the issue of the ontological foundations of law are drafted in the context of the analyzed theory. My interest is centered on the conception of philosophy adopted by Kaufmann, according to which the existence of the reality is inferred on the basis of a certain configuration of the content of consciousness, whereas at the point of departure of philosophy of law, the data to be explained is a certain process, which is, basically, a process of cognition, while the reality appears only as a condition for the possibility of the occurrence of the process. I wish to argue that the difficulties which appear in the explanation of law are a consequence of the assumed fundamental philosophical solu¬tions, which seem to be characteristic, though usually not assumed explicitly, in philoso¬phy and theory of law dominant at present in continental Europe. Thereby, I wish to show the significance of ontological and epistemological solutions to the possibility of a proper formulation of the problems posed by philosophy and theory of law. Kaufmann proclaims himself in favour of a philosophy which poses questions about the ultimate foundations of understanding of the reality. In epistemology, he assumes that answers to the questions "What is reality like?" and ultimately "What is real?" are inferred on the basis of uniformity of a cognitive acts of different subjects. Cognition of the reality is accomplished exclusively through the content of conceptual material. The two fundamental questions posed by philosophy of law are "What is just law?" and "How is the just law enacted?" The latter is a question about the process of achieving a solution to a concrete case. Since, in Kaufmann's opinion, law does not exist apart from the process of its realisation, an answer to the question about the manner of realisation of law is of fundamental significance to answering the question: "What is law?" and to the explanation of the question about the ontological grounding of law, which is, as well, the foundation of justice. The proper solution has to take into account the moment of "non-dispositive" content of law; its positiveness understood as the reality and, at the same time, it has to point to the principles of the historical transformation of the content. Law, in the primary meaning of the word, always pertains, in Kaufmann's opinion, to a concrete case. A legal norm is solely the "possibility" of law and the entirely real law is ipsa res iusta, that which is just in a given situation. Determination of what is just takes place in a certain type of process performed by a judge (or by man confronted with a choice). Kaufmann aims to reconstruct this process. A question about the ontological foundation of law is a question about the ontological foundations of this process. In the analyzed theory it is formulated as a question about the transcendental conditions, necessary for the possibility of the occurrence of the process: how the reality should be thought to make possible the reconstructed process of the realisation of law. Kaufmann rejects the model for finding a concrete solution based on simple subsump¬tion and proposes a model in which concrete law ensues, based on inference by analogy, through the process of "bringing to conformity" that which is normative with that which is factual. Kaufmann distinguishes three levels in the process of the realisation of law. On the highest level, there are the fundamental legal principles, on the second legal norms, on the third — concrete solutions. The fundamental principles of law are general inasmuch as they cannot be "applied" directly to concrete conditions of life, however, they play an important part in establishing norms. A judge encounters a concrete situation and a system of legal norms. A life situation and norms are situated on inherently different levels of factuality and normativeness. In order to acquire a definite law both a norm (system of norms) and a life situation (Lebenssachverhalt) should undergo a kind of "treatment" which would allow a mutual conformity to be brought to them. Legal norms and definite conditions of life come together in the process of analogical inference in which the "factual state" ("Tatbestand") — which represents a norm, and in the "state of things" ("Sachverhalt") — which represents a specific situation are constructed. A "factual state" is a sense interpreted from a norm with respect to specific conditions of life. The "state of things" is a sense constructed on the basis of concrete conditions of life with respect to norms (system of norms). Legal norms and concrete conditions of life meet in one common sense established during the process of realisation of law. Mutatis mutandis the same refers to the process of composition of legal norms: as the acquisition of concrete law consists in a mutual "synchronization" of norms and concrete conditions of life, so acquisition of legal norms consists of bringing to conformity fundamental principles and possible conditions of life. According to Kaufmann, both of these processes are based on inference through analogy. As this inference is the heart of these processes it is simultaneously a foundation finding just law and justice. How does Kaufmann understand such an inference? As the basis for all justice he assumes a specifically interpreted distributive justice grounded on proportionality. Equality of relations is required between life conditions and their normative qualification. Concrete conditions of life are ascribed normative qualification not through simple application of a general norm. More likely, when we look for a solution we go from one concrete normative qualified case to another, through already known "applications" of norms to a new "application". The relation between life conditions and their normative qualifica¬tion has to be proportional to other, earlier or possible (thought of) assignments of that which is factual to that which is normative. Law as a whole does not consist of a set of norms, but only of a unity of relations. Since law is a, based on proportion, relative unity of a norm and conditions of life, in order to explain law in philosophical manner, the question about ontological base of this unity has to be asked. What is it that makes the relation between a norm and conditions of life "non-dispositive"? What is the basis for such an interpretation of a norm and case which makes it possible to bring a norm and conditions of life into mutual "conformity"? This is a question about a third thing (next to norms and conditions of life), with respect to which the relative identity between a norm and conditions of life occurs, about the intermediary between that which is normative and that which is factual and which provides for the process of establishing of norms, as well as, finding solutions. It is the "sense" in which the idea of law or legal norm and conditions of life have to be identical to be brought to mutual "conformity". In Kaufmann's opinion such a sense is nothing else but the "nature of things" which determines the normative qualification of the reality. Since establishment of this "sense" appears to be "non-dispositive" and controlled inter-subjectively (namely, other subjects will reach a similar result) so, in conformity with the convergent concept of truth, the "nature of things" must be assigned a certain ontological status. According to Kaufmann this is a real relation which occurs between being and obligation, between the conditions of life and normative quality. However, it should be underlined that from the point of view of the analyzed system the "nature of things" is a correlate of constructed sense, a result of a construction which is based on the principle of consistent understanding of senses ("non-normative" and "normative") and is not a reality which is transcendent against the arrangement of senses. In Kaufmann's theory, inference from analogy appears to be a process of reshaping the concepts (senses) governed by tendency to understand the contents appearing in relations between that which is factual and that which is normative in a consistent way. The analogical structure of language (concepts) and recognition of being as composed of an essence and existence is an indispensable requirement for the possibility of the realisation of law, based on specifically understood inference from analogy. It is necessary to assume a moment of existence without content which ensures unity of cognition. Existence emerges thus as a condition of the possibility of cognition. According to Kaufmann, the "nature of things" is the heart of inference through analogy and the basis for establishment of finding of law. Inference from the "state of things" to a norm or from a norm to the "state of things" always means inference through the "nature of things". The "nature of things" is the proper medium of objective legal sense sought in every cognition of law. In Kaufmann's view, the question whether the "nature of things" is ultima ratio of interpretation of law or is only a means of supplement gaps in law or whether it is one of the sources of law, is posed wrongly. The "nature of things" serves neither to supplement the gaps nor is it a source of law as, for example, a legal norm may be. It is a certain kind of "catalyst" necessary in every act of making law and solving a concrete case. Owing to "nature of things" it is possible to bring to a mutual conformity the idea of law and possible conditions of life or legal norms and concrete conditions of life. In Kaufmann's conception the "nature of things" is not yet the ultimate basis for understanding the "non-dispositiveness" of law. The relation between obligation and being is determined in the process of the realisation of law. Both the process itself and that which is transformed in this process are given. A question about the ontological bases of "material" contents undergoing "treatment" in the process of the realisation of law and about being which is the basis of regularity of the occurrence of the process arises. Only this will allow an explanation that the result of the process is not optional. Thus, a question about reality to which law refers and about the subject realising the law has to be formed. To this, Kaufmann gives the following answer: that which is missing is man but not "empirical man" but man as a "person". A "person" understood as a set of relations between man and other people and things. A "person" is the intermediary between those things which are different — norm and case are brought to conformity. A "person" is that which is given and permanent in the process of the realisation of law. It determines the content of law, is "subject" of law; this aspect is described by Kaufmann as the "what" of the process of realisation of law. A "person" consists of precisely just these relations which undergo "treatment" in the process. On the other hand, a "person" is "a place" in which the processes of realisation of law occur, it is the "how" of normative discourse, a "person" is that which determines the procedure of the process, being "outside" of it. This aspect of a "person" is connected with the formal moment of law. A "person" being, at the same time, the "how" and the "what" of the process of the realisation of law, is also, to put it differently, a structural unity of relation and that which constitutes this relation (unity of relatio and relata). According to this approach a "person" is neither an object nor a subject. It exists only "in between". It is not substance. Law is the relation between being and obligation. That which is obligatory is connected with that which is general. That which is general does not exist on its own, it is not completely real. Accordingly, a "person" as such is also not real. It is relational, dynamic and historical. A "person" is not a state but an event. In Kaufmann's opinion, such a concept of a "person" helps to avoid the difficulties connected with the fungibility of law in classical legal positivism. A "person" is that which is given, which is not at free disposal and secures the moment of "non-dispositiveness" of law. Kaufmann concludes: "The idea (»nature«) of law is either the idea of a personal man or is nothing". Theory points at the structure of realising law and explains the process of adoption of general legal norms for a concrete situation. The analysis has shown however, that in this theory a satisfactory answer to the question about the ultimate foundations of law is not given. It seems that in the analyzed theory the understanding of human being takes place through understanding of law. What is good for man as a "person", what is just, what a "person" deserves may be determined only against the existing system of law. A "per¬son" adopted as a basis of law is the reality postulated in the analysis of the process of the realisation of law. It is a condition of possibility of this process ( explaining, on one hand, its unity and, on the other hand, the non-dispositive moments stated in this process). A "person" in the discussed theory is entirely defined by the structure of law, it can be nothing more than that which is given in law, what law refers to, what law is about. Being, which is a "person", is constituted by relations between people and objects, the relations which are based on fundamental links between norms and conditions of life established in a process of bringing them to conformity. It has to be assumed that man as a "person" is a subject of law only as far as realising law "treats" given senses according to their current configuration. The system of law is a starting point and it describes in content what man is as a "person". Moreover, being a "person" is the condition for entering legal relations. Consistently, Kaufmann writes that "empirical man" is not the subject of law, man is not "out of nature" a "person". People become "persons" due to the fact that they acknowledge each other as "persons" — acknowledging, at the same time, law. This acknowledgement is a con¬dition of existence, of the possibility of the occurrence of process of realisation of law and of constituting legal relations which ultimately constitute a "person". Kaufmann assumes, that law tends towards a moral aim: it may and must create an external freedom, without which the internal freedom to fulfil moral obligations cannot develop. However, this postulate is not based on the necessary structure of human being. From the point of view of his system, it is nothing more than only a condition for the possibility of the occurrence of the process of the realisation of law — lack of freedom would destroy the "how" of this process. Thus, the postulate to protect the freedom of personal acts has to be interpreted, in accordance with the analyzed theory, as a postulate, the fulfilment of which aims ultimately at the accomplishment of the very same process of realisation of law itself and not the realisation of a given man. Kaufmann considers a "person" to be an element which unites the system of law as a whole. Law is a structure of relations, which are interdependent and inter-contingent. Consequently, a "person" which is to form the ontological basis of law has to be entity consisting of all relations. Being also the "how" of the process of realisation of law, if a "person" is to warrant its unity, it has to be a common source for all procedures. Hence, a single "person" would constitute a subject of law. Man appears to be only a moment of a certain entirety, realisation of which should be an aim of his actions. Law, creating a "person" as an object and subject of law becomes a primary entity. In the analyzed theory, the basis for determination of aims which law sets to man is not the allocation of man-subject to something which improves him but rather, such relation is only just constituted by law. A question appears, why should aims set in law also be the aims of "empirical man"? Why is this "empirical man" to be punished in the name of a "person" understood in such a way? If, however, it is assumed that what is man is determined by a system which is superior to him, then man has to be understood only as a part of a whole and there are no grounds to prohibit istrumental treatment of man and so the road to all aspects of totalitarianism might be opened. A problem of the application of created theory to the reality arises, the reality which the theory pretends to explain. Ultimately in his theory Kaufmann does not give any systemic grounds for a radical questioning of the validity of any legal norms. Every new norm becomes an equal part of system of norms. It is only its interpretation and application to given conditions of life that may be disputable, however, this refers to all norms without exception. Cohesive inter-pretation of norms and applications is necessary and sufficient for the acquisition of just law. New norms have to be interpreted in the light of others, correspondingly, the other norms require reinterpretation in the light of the new ones. Contradiction in interpretation of a norm does not form a basis for questioning norms but may serve only to question the manner of their interpretation (understanding). Therefore, no grounds exist to assume any legal norm as criminal or unjust, and in consequence, to question any consistently realised system based on formally, properly established norms, as "legal lawlessness". As law and a "person" do not exist without the process of realisation of law, the role of legal safety becomes crucial as the condition for the possibility of the occurrence of the process of realisation of law. Denying legal safety would be tantamount to negation of law in general (also of moral law) as negation of safety takes away, at the same time, the basis for occurrence of the process of realisation of law. Moreover, any lack of legal safety would also mean lack of a basis for the existence of man as a "person". Kaufmann's thesis, that civil disobedience is legalized only when it has a chance to lead to success, consistent with his concept of the foundations of law, seems to point directly to conclusions which deny the facts taken under consideration and doubtlessly Kaufmann's own intentions, since it would have to be assumed that accordingly there are no grounds to question a legal system in force based on violence which secures its operation. Force finally seems to determine which one of the mutually irreconcilable normative systems constitute law and which does not. A legitimate position is one which leads to success, it is the weaker system which is negated. If so, then basically violent imposition of law is not an act directed against the law in force but, to the contrary, realisation of law. In the context of the new system the former system of law may be talked about as unjust solely in the sense of being incapable of being consistently united with the new. However, at the base, ultimately, lies force which reaffirms differences and excludes from the process of realisation of law certain norms and their interpretations. Kaufmann was aiming at grounding of that which is "non-dispositive" in a certain given framework of interpretation. Nevertheless, he does not provide foundations for the understanding of phenomena, which he undertakes to explain at a point of departure. Instead of explaining them the theory negates the possibility of their existence. The reality postulated in regard to "non-dispositive" moments of the reconstructed process of acquiring law consist of a specifically understood "person", which appears in Kaufmann's conceptions as a condition of the possibility of the realisation of law. According to this approach understanding of a "person" may be only a function of law. To understand "legal lawlessness" and foundations of justice it is necessary to look for such theory of law in which understanding of man as a "person" and being is not a function of understanding of law (in which a "person" is not only a condition for possibility of reconstructed process of realisation of law; for possibility of cognition processes). It seems necessary to start from theory of being and a "person" based on broader experience than the one assumed by Kaufmann and reconstruct the ontological foundations of the process of realisation of law only in such perspective. Kaufmann points out that that to which law refers is ipsa res iusta a concrete relation of man to other people and things. This relation, in his theory, appears to be basically only just constituted by law (normative senses "applied" to conditions of life). Therefore, understanding the relation between a given man and other people and things which constitute the aim of his actions, that is understanding of good, is enacted against the background of constitution of senses; constitution which is a result of a process aiming towards consistent understanding of particular contents (of nor¬mative and non-normative senses). "Being" is secondary towards constructed senses it is only their correlate. The primary relation consists of relation of a man to law (system of norms), while the secondary relation is one of man to something which is the aim of his action (relation between man and good). Considering such approach it is difficult to envision a satisfying answer to the fundamental question: why does law put concrete man under any obligation to obey it? The source of this problem can be seen in reduction of the base for understanding good to content of obligation formulated in auto-reflection. Such reduction seems to be a consequence of Kaufmann's adoption of "convergent concept of truth" and in con¬sequence his recognition of indirect, essentialistic grasp of reality formulated in concepts as the basic and only foundation of theory of being and of law. In view of such an approach, analogy of law, concepts and being is the condition for the possibility of the process of transformation of senses which aims at consistent interpretation of all law. Existence is postulated with respect to the possibility of unity of experience and cognition. However, also a different approach to understanding of the problem of being and good is possible. In spontaneous cognition being is affirmed, first of all, not as a certain, non-contradictory, determined content, but as something existing. Together with a cer¬tain content (passed indirectly through notions) existence of being is co-given. The basis for unity of being is not formed by the consistence of content, as it is in the case of the theories departing from the analysis of cognition processes, but by an act of existence realising content (essence). Such an approach makes it also possible to go beyond the convergent concept of truth. It is worth mentioning that allocation of an agent to good is realised not only by the content of duty. A statement that something is good is primary with respect to determination of this good in content. The recognised good always bears some content, however, there are no reasons to base the concept of good exclusively on indirect, formulated in concepts cognition. As primary, can be adopted the relation of man to good and not of man to law. Determination in content appears to be only an articulation of aspectual cognition of being, as an object of action. In such a case the basis for relative unity of norm and conditions of life is not the "nature of things" understood as correlate of sense but it is relation to good based on internal constitution of man as potential, not self-sufficient being. It does not mean, that the moments of the process of realisation of law singled out by Kaufmann are not important to determination of what is just. He, quite rightly, points to significant role played by norms in the evaluation of concrete situations, in man's search for closer specification in content of good innate to him. The structure of process of determining law for a concrete situation, to a great degree corresponds to the processes of determining law which take place not only in the legal sciences. Kaufmann's analyses of the process of realisation of law show the complexity of the structure of these processes and point towards important moments allowing a better understanding of law and man. Nevertheless, these analyses cannot be a basis for construction of philosophical theory of law, theory which hopes to point out the ultimate, ontological foundations for understanding law. Kaufmann's results may become fully valid only in a more general perspective including broader experience at the point of departure. (shrink)

This essay deals with conditions, challenges and perspectives concerning the legal system of the European Union after the Lisbon treaty has entered into force. It starts out by recalling constitutional principles such as primacy, direct effect and consistent interpretation of the European legal order on the one hand and the relationship of cooperation between the Court of Justice and national courts – notably pointing out the importance of the preliminary procedure (Article 267 TFEU) – on the other hand. In (...) addition, characteristics of the legal system of the European Union such as the integration of national legal systems are highlighted. It is accentuated that the legal community of the European Union depends on the acceptance by all 27 Member States. Furthermore, the normative quality of European law-making is discussed as well as the necessity for a sufficient democratic legitimation of European Law. As impressively illustrated by the financial crisis, the European Union is much better equipped with possibilities to effectively fulfil regulatory tasks than any Member State. The author shows developments with regard to European Union citizenship, non-discrimination, the Charter of Fundamental Rights - that is now equipped with binding character – and the vertical distribution of competences between the European Union and the Member States, including explanations relating to subsidiarity requirements and their judicial review. Moreover, challenges to the institutions of the European Union are discussed. (shrink)

Los estudios modernos sobre derecho islámico han puesto de relieve la necesidad de estudiar los procedimientos jurídicos en el Islam y el papel desempeñado por la práctica judicial en su formación. Se considera en general que, en el período temprano, los cadíes disponían de mayor libertad en lo relativo a testigos y métodos para establecer pruebas. Posteriormente y de forma gradual el sistema se volvió más rígido y restrictivo. En relación a este desarrollo, los investigadores han propuesto distintas fechas, que (...) van desde la segunda mitad del siglo VII hasta el siglo VIII e incluso hasta el siglo XI. Estos investigadores han tratado la doctrina de al-yamīn ma‛ al-šàhid como una excepción dentro del procedimiento establecido por la šarī‛a que, según ellos, se basaba estricta y mecánicamente en la doctrina de los dos testigos. Para dichos investigadores, la doctrina de al-yamīn ma‛ al-šàhid surgió bajo la influencia de determinadas locadidades o bien por influencia judía. Este artículo propone que esa doctrina debió de surgir en el contexto del período de la guerra civil, cuando las cuestiones sobre qiṣāṣ, qawad, qasāma y ḥakam fueron discutidas con frecuencia en relación con el Corán y la sunna común y cuando se sintió la necesidad de reformar la institución del ḥakam. Sobre la base de afirmaciones dispersas de ulemas que vivieron en fechas cercanas a ese período, afirmaciones que se ven confirmadas por los comentarios de Wakī‛, se concluye que Mu‛āwiya fue quien introdujo ese método para reformar la institución del ḥakam. La práctica judicial de esta doctrina también confirma que estaba demasiado difundida como para poder considerarla una práctica medinense o una práctica local, tal y como pretenden algunos juristas clásicos, los tradicionistas y algunos investigadores modernos. (shrink)

Within the Irish government there is a discussion regarding the possibility of limiting the legal protection afforded to the confessional secret. This paper addresses the question of whether this suggestion, if it were to be implemented by the legislature, would be compatible with the right to religious freedom under Article 9 of the European Convention on Human Rights (ECHR). This text will also highlight the role of the confessional secret in canon law and the protection of it under German (...) law. Catholic priests, should this plan that is currently under discussion be implemented, were obliged to disclose the knowledge gained in confession to law enforcement authorities. The canonical consequence of such a breach of the confessional secret would be excommunication. In such cases priests therefore would only have the choice between breaking the law (which would probably also be punishable under criminal law) and excommunication, with all the resulting disadvantages. In this paper, the canonical law rules regarding confession are presented before the provisions relating to the confessional secret in § 53 para. 1 No. 1 of the Code of Criminal Procedure, § 383 para. 1 No. 4 of the Code of Civil Procedure and § 139 para. 2 of the Criminal Code are discussed. Specifically, the question is raised as to whether a duty of priests to co-operate with the law enforcement authorities may be established by law. Here in particular the protection of the confessional secret under the protection of freedom of religion under Article 9 of the European Convention on Human Rights will be discussed. It has to be noted however that the protection afforded by Article 9 of the European Convention on Human Rights extends far less than the scope of § 53 para. 1 No. 1 of the Code of Criminal Procedure, § 129 para. 2 of the Criminal Code and § 383 para. 1 No. 4 of the Code of Civil Procedure, as Art. 9 ECHR only protects the confessional secret as far as it is required from a religious point of view, but not a general pastoral secret. The article then includes a discussion on the limitations of Article 9 ECHR. Limitations of Article 9(1) ECHR on religious freedom under Article 9(2) ECHR are only permitted if they are prescribed by law and necessary in a democratic society for the protection of public order, health, morals or the rights of others. This is discussed against the background of the legislative goal of more effective law enforcement. As a result, a limitation of the protection of confessional secret through normal (sub-constitutional, domestic) laws, despite the understandable goal of more effective law enforcement, is not compatible with Article 9 of the ECHR. (shrink)

This article analyzes three video-recorded asylum interviews, their written records and the corresponding decisions by the Finnish Immigration Service. The goal is to identify the causes and consequences of vulnerability in instances that are particularly important when assessing whether the asylum seeker has a well-grounded fear of persecution. A combination of linguistic, psychological and epistemic perspectives on vulnerability shows that these three dimensions are closely intertwined in asylum interviews. Linguistic vulnerability is linked for the most part to (...) interpreting, whereas psychological vulnerability stems from the difficulty in recounting traumatic experiences. Both linguistic and psychological vulnerabilities are central forces that also lead to epistemic vulnerability. Epistemic vulnerability, we claim, gives rise to certain practices within the asylum procedure, which again represents the materialization of the discourses of reporting, truth and credibility. (shrink)

The facticity of sexuality is a key driver of the asylum procedure in “LGBT” cases, where non-heterosexual identities can be grounds for gaining” refugee status.” The procedure becomes a test of sexual veracity by means of a truthful performance. This performance is primarily discursive, but it is also bodily in terms of the way bodily comportment is considered indicative of a “true story.” Underlying this process is a conception of sexuality as a fixed, invisible but ever present (...) identity. Sexuality, we argue, gets configured in ways akin to what is commonly called an “infrastructure.” The veracity and facticity of accounts of, and for, this ‘infrastructure of selfhood’ can only be ascertained in live encounters during the asylum procedure. This article ethnographically highlights how such a particular facticity is composed in the Dutch asylum procedures. Building on Judith Butler’s work on narrative accounts of the self, we show how the state intervenes in crucial ways in asserting the authority to assign truth to such a narrative account. (shrink)

This work, translated from the German, is divided into nine chapters with a preface plus a very helpful introduction by the translator. There is also a postscript by Habermas, as well as a reprinting of two earlier papers on related topics. The book is intended as a contribution to contemporary political philosophy, and, as such, Habermas accepts certain assumptions in advance and does not attempt to argue for them at any length. The first is the “linguistic turn” in philosophy, (...) the antirealist view that all knowledge is in some sense constructed by human culture and language. The second is the failure of natural law theory. Hence, his task is to engage in political philosophy in a “post-metaphysical age,” an age which requires a “procedural reason... that puts itself on trial”. Against this background, the political philosopher must avoid the twin pitfalls of subordinating law to a transcendentally grounded morality and of identifying law with a particular tradition’s view of the good life. (shrink)

Journal Name: Semiotica Issue: Ahead of print.

The tendencies of the development of the Lithuanian criminal procedure within the recent twenty years, after Lithuania has regained its independence, are analyzed in the present article. The main factors which influence lawmaking in the sphere of criminal procedure as well as in the application of the criminal procedure norms are discussed. The constitutional imperatives and the human rights, fixed in international and the European Union agreements as the main factors determining the evolution of the law of (...) criminal procedure are reviewed. It is stated that earlier, while amending or supplementing the Code of Criminal Procedure, the utmost attention used to the drawn to the legal tradition of the state, whereas the legal norms of the modern criminal procedure must be subordinated to the principles fixed in the Constitution. After having briefly reviewed the main tendencies of the development of criminal procedure, i.e. the constitutionalization and internationalizationeuropeization, the following conclusion is drawn: the mentioned tendencies have been producing a significant impact on the evolution of the Lithuanian criminal procedure after the restoration of independence and accession to the international treaties. However, the systemic and critical viewpoint towards the impact of the European Union law on the national law of criminal procedure is still missing. (shrink)

In 2012 there are 76 countries of the world still criminalising same-sex sexual acts between consenting adults. In seven of those countries homosexual acts are punishable with death penalty (i. e., Mauritania, Sudan, the northern states of Nigeria, the southern parts of Somalia, Iran, Saudi Arabia and Yemen). Homophobic (transphobic) attitudes are also frequent in many societies. However, the LGBT asylum seekers are frequently left outside the refugee definition due to many refugee qualification and procedural problems in LGBT cases. (...) Criminalisation, state protection against non-state persecution, concealment of sexual or gender identity, internal protection were discussed in the previous article ‘The Refugee Qualification Problems in LGBT Asylum Cases’ by Laurynas Biekša2. In this article the authors aim to describe the main procedural problems in LGBT asylum cases (i. e., credibility assessment, late disclosure, country of origin information and reception) and propose their solutions. Guiding European and international standards are laid down in the Reception Directive3, Qualification Directive4, Procedures Directive5 and UNHCR Guidance Note6. Today these standards should serve as a starting point for identifying the problems LGBT asylum seekers may have during their asylum procedures and for finding possible solutions. (shrink)

Name der Zeitschrift: Semiotica Jahrgang: 2017 Heft: 216 Seiten: 383-397.

The purpose of this article is to respond to Jacques Derrida’s reading of Immanuel Kant’s laws of hospitality and to offer a deeper exploration into Kant’s separation of a cosmopolitan right to visit ( Besuchsrecht) and the idea of a universal right to reside ( Gastrecht). Through this discussion, the various laws of hospitality will be examined, extrapolated and outlined, particularly in response to the tensions articulated by Derrida. By doing so, this article will offer a reinterpretation of the laws (...) of hospitality, arguing that hospitality is not meant to capture all the conditions necessary for cosmopolitan citizenship or for a thoroughgoing condition of cosmopolitan justice as Derrida assumes. This is because hospitality could be understood as the basic normative requirement necessary to establish an ethical condition for intersubjective communication at the global level, where discursive communication regarding the substance of a future condition of cosmopolitan justice is to be subjected to global public reason. (shrink)

This Article examines consumer law enforcement in the EU. It shows how the effectiveness of collective and individual redress is intrinsically linked to the interplay between administrative and judicial enforcement and alternative dispute resolution. It addresses the trends and the contradictions of EU enforcement policies and their impact on national systems by looking at the role of general principles and fundamental rights, in particular Article 47 of the European Charter of Fundamental Rights. It concludes with policy recommendations concerning how the (...) various consumer enforcement mechanisms should be coordinated at the EU and national level to ensure comprehensive and effective protection in compliance with fundamental rights. (shrink)

Gegenstand der vorliegenden Arbeit ist das persönliche Recht des Urhebers auf die Integrität seines Werkes, wie es in Deutschland und den USA seinen rechtlichen Ausdruck findet. Gerade im Zeitalter immer einfacherer und schnellerer Bearbeitungstechniken, welche der Anpassung von Werken an die Wünsche der Nutzer dienen, muss das Recht den erforderlichen Veränderungsschutz bieten. Aber nicht nur das Interesse des Schöpfers an der Integrität seines Werkes, sondern auch das Interesse der Nutzer an dessen Authentizität, gilt es über dieses Recht zu sichern. Am (...) stärksten wird der Integritätsschutz durch politische und wirtschaftliche Entscheidungen geprägt, die sich im Spannungsverhältnis zwischen gewinnorientierter Werkverwertung und Persönlichkeitsschutz bewegen. In den letzten Jahren wurde zunehmend der kommerzielle Wert des Integritätsrechts, sowohl seitens der Werkverwerter als auch der Urheber, erkannt. Das Recht muss deshalb an seine neue Funktion als Wirtschaftsgut angepasst werden. Dazu bedarf es gesetzlicher Regelungen über die Verkehrsfähigkeit des Rechts. Diese sollten einerseits weit genug sein, um eine angemessene Werkverwertung sicher zu stellen und der Vertragsfreiheit der Parteien Rechnung zu tragen; andererseits müssen sie die Grenzen eng genug ziehen, damit der Integritätsschutz nicht ausgehöhlt wird. (shrink)

The so-called Istanbul Protocol, a Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhumane or Degrading Treatment or Punishment was adopted by the United Nations soon after its completion in 1999 and since then has become an acknowledged standard for documenting cases of alleged torture and other forms of severe maltreatment. In 2009 the “Forum for medicine and human rights” at the Medical Faculty at the University Erlangen-Nuremburg has provided the first German edition of this (...) manual. The article traces back the development of the protocol taking into account the general background as well as the factual occasion of its initiation. The main ethical and legal principles of the manual are introduced as well as the projects for implementing the rules provided in the protocol that have been carried out so far. From this the urgent need for implementation of the Istanbul Protocol guidelines also in Europe and in German-speaking countries and here not exclusively but especially within asylum procedures becomes clear. (shrink)

Although the Refugee Convention 1951 generally provided that contracting states should recognise those who came within its definition as refugees, it did not prescribe how contracting states should determine this in order to enable them to balance this obligation with their national interests. However, evidence from the background and drafting of the Refugee Convention 1951 suggests that the provisions that a contracting states would implement in order to protect its interests would be commensurate with the human rights spirit of the (...) treaty. This implied that contracting states would act fairly in balancing the competing interests in devising status determination policies and would take into account decent considerations. But, from a theoretical viewpoint, it is arguable that some recent asylum determination policies have been based on the threats posed by asylum seekers. Asylum seekers have come to be blamed for contributing to the national issues that some contracting states face and as such, some contracting states have adopted draconian measures as a result. (shrink)