Review of Central and East European Law最新文献_第8页

The Return of Forgotten Critique: Some Remarks on the Intellectual Sources of the Polish Populist Revolution 被遗忘的批判的回归:波兰民粹主义革命的思想来源述评

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-06-23 DOI: 10.1163/15730352-bja10009

A. Sulikowski

{"title":"The Return of Forgotten Critique: Some Remarks on the Intellectual Sources of the Polish Populist Revolution","authors":"A. Sulikowski","doi":"10.1163/15730352-bja10009","DOIUrl":"https://doi.org/10.1163/15730352-bja10009","url":null,"abstract":"The Law and Justice party (Prawo i Sprawiedliwość, or PiS), which has been ruling in Poland since 2015, has developed a specific narrative about the law and judiciary, which constitutes the ideological background of its stance in the conflict concerning the rule of law in the country. The main tenets of the legal ideology of Law and Justice include the views that judicial decisions are not determined by legal texts (the indeterminacy thesis), and that judges are part of an elite who are detached from society at large and are attempting to impose the liberal world-view upon a conservative society. The aim of the paper is to deconstruct those ideological constructs in a search for their possible sources in certain critical currents in the legal theory of the Polish People’s Republic, represented by Stanisław Ehrlich, Leszek Nowak and Jarosław Ładosz. The paper notes interesting parallels between the legal ideas developed by those three legal theorists and the current narrative put forward by Law and Justice. Whilst stopping short of claiming a direct and conscious inspiration, the paper nonetheless hypothesises possible avenues of influence, including the academic mentorship of Ehrlich over Jarosław Kaczyński in the early 1970s and Nowak’s involvement in the ‘Solidarity’ movement in the 1980s following his anti-Marxist intellectual and political turn. The paper concludes that legal critique in Poland, after a period of being repressed in the 1990s, is now returning; however, whilst its first appearance (in the socialist period) was a ‘tragedy’ (due to its inability to subject socialist law to any form of critique), its current return is a ‘farce’, since critical tools are used not for their original purpose (emancipation), but in order to further a populist-conservative project.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"103 1","pages":"376-401"},"PeriodicalIF":0.2,"publicationDate":"2020-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85840225","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Wiesław Lang’s Legal Thought – Between Sociological and Analytical Jurisprudence Wiesław朗的法律思想——介于社会学与分析法学之间

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-06-23 DOI: 10.1163/15730352-bja10010

Milena Korycka-Zirk

引用次数: 1

Conceptualising Judicial Application of Law in the Polish Theory of Legal Interpretation 波兰法律解释理论中法律司法适用的概念化

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-06-23 DOI: 10.1163/15730352-bja10011

M. Golecki, B. Wojciechowski

{"title":"Conceptualising Judicial Application of Law in the Polish Theory of Legal Interpretation","authors":"M. Golecki, B. Wojciechowski","doi":"10.1163/15730352-bja10011","DOIUrl":"https://doi.org/10.1163/15730352-bja10011","url":null,"abstract":"The article presents the issue of the judicial application of the law in contemporary Civil Law jurisdictions. This topic arouses a great deal of controversy, because it is associated with granting courts a wide range of discretionary powers, including lawmaking. In the theoretical-legal literature this issue is often dealt with by juxtaposing different ideologies on the judicial application of law: bound, free or legal and rational. This division was introduced and developed by Jerzy Wróblewski, whose concept of the judicial application of law is presented and critically analyzed in the present article, with particular attention paid to the principle of the separation of powers. In recent Polish theoretical-legal literature, discussion on this issue has tended to focus less on whether the courts in our legal system possess lawmaking competence, and more on whether they should be allowed such competence. This is due to the fact that a view now prevails in the literature which holds that, in certain cases, there is a need for creative interpretation of the law, as this can remedy the poor quality of the law enacted by the legislator.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"10 1","pages":"229-247"},"PeriodicalIF":0.2,"publicationDate":"2020-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81100295","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 1

Constitutional Orders of Non-Recognized Entities in Georgia and Ukraine. Can façade Constitutions Ensure Adequate Protection of Human Rights? 格鲁吉亚和乌克兰不承认实体的宪法秩序。公平宪法能确保充分保护人权吗?

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-03-13 DOI: 10.1163/15730352-bja10001

R. Petrov, Gaga Gabrichidze, P. Kalinichenko

引用次数: 4

Crimes against the Peace and Security of Mankind in the Revised Edition of the Criminal Code of the Republic of Uzbekistan 《乌兹别克斯坦共和国刑法修订版》中关于危害人类和平及安全的罪行

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-03-13 DOI: 10.1163/15730352-04404004

S. Sayapin

引用次数: 3

Negligent Rape in Croatian Criminal Law: Was Legal Reform Necessary? 克罗地亚刑法中的过失强奸:法律改革是否必要?

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-03-13 DOI: 10.1163/15730352-BJA10002

Marin Mrčela, Igor Vuletić, Goran Livazović

{"title":"Negligent Rape in Croatian Criminal Law: Was Legal Reform Necessary?","authors":"Marin Mrčela, Igor Vuletić, Goran Livazović","doi":"10.1163/15730352-BJA10002","DOIUrl":"https://doi.org/10.1163/15730352-BJA10002","url":null,"abstract":"This paper discusses the issue of negligent rape and liability for unreasonable belief in the victim`s consent in the context of Croatian criminal law. Modern rape law presents many challenges to both lawmakers and judges, with criminalizing negligence being only one of those challenges. This became more interesting in Croatia after amendments to the Criminal Code in 2011 (in effect since 2013), that criminalized unreasonable mistake of facts in the crime of rape. Croatian rape law has undergone significant changes related to these amendments. However, this paper focuses only on the aspect of unreasonable mistake of consent, this being both the most controversial and of great practical importance. The first section describes the elements of rape according to the Croatian Criminal Code along with an interpretation of those elements in the jurisprudence of the Croatian Supreme Court. Special attention is placed on the problem of mens rea and (un)reasonable belief in consent. The discussion also identifies the reasons for reform and the impact of the Sexual Offences Act of England and Wales (2003), which served as a model for Croatian legislators. The second section analyzes the results of research conducted by Croatian judges on the relevant status of the mistake of facts defense, as well as the importance of the victim`s resistance in terms of achieving a conviction, with special regard to the rate of rape convictions in Croatian law. The third section reviews comparative regional laws (Slovenia, Serbia, and Montenegro) with the goal of positioning the new Croatian rape law in a regional context. The last section discusses the necessity of criminalization of the negligent form of rape from the perspective of trends and standards created in Croatian theory and jurisprudence in the years prior to this amendment of the law.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"48 1","pages":"126-160"},"PeriodicalIF":0.2,"publicationDate":"2020-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86420981","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 3

History of Russian Law and Its Interpretations 俄罗斯法律的历史及其解释

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-03-13 DOI: 10.1163/15730352-04501006

M. Antonov

引用次数: 0

Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime 塞尔维亚法律中的行政合同——新法定制度的特殊性

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-03-13 DOI: 10.1163/15730352-04404005

M. Mirić, T. Petrović

{"title":"Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime","authors":"M. Mirić, T. Petrović","doi":"10.1163/15730352-04404005","DOIUrl":"https://doi.org/10.1163/15730352-04404005","url":null,"abstract":"The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"80 1","pages":"1-35"},"PeriodicalIF":0.2,"publicationDate":"2020-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"91116294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

Linguistic Rights and Education in the Republics of the Russian Federation: Towards Unity through Uniformity 俄罗斯联邦各共和国的语言权利和教育:通过统一实现统一

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2020-03-13 DOI: 10.1163/15730352-bja10003

S. Jankiewicz, N. Knyaginina, F. Prina

{"title":"Linguistic Rights and Education in the Republics of the Russian Federation: Towards Unity through Uniformity","authors":"S. Jankiewicz, N. Knyaginina, F. Prina","doi":"10.1163/15730352-bja10003","DOIUrl":"https://doi.org/10.1163/15730352-bja10003","url":null,"abstract":"This article traces the evolution of the debate on the balancing of federal and regional competences in regulating the use of minority languages in Russia’s education system. Taking into account relevant law and judicial practice, as well as developments in center-periphery relations since 2017, the article argues that the federal center has been increasingly depriving Russia’s republics of the ability to self-regulate in the education sphere – particularly over the question as to whether they may require the compulsory study of republican languages (recognized as co-official with Russian) in schools located within their administrative borders. These processes can be located in the context of the centralization of the education system and a corresponding reduction of multilingualism in Russia’s schools. This can, in turn, be seen as part of an underlying drive to promote national unity through uniformity, through the dilution of the country’s linguistic and cultural diversity and a concurrent emphasis on the primacy of the Russian language. The article further argues that the Russian education system’s centralization has been ongoing: while it has intensified since 2017, the trajectory of the jurisprudence shows an earlier movement towards a concern for ‘unity’ that anticipated it.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"57 1","pages":""},"PeriodicalIF":0.2,"publicationDate":"2020-03-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88620288","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 5

Deployments of Memory with the Tools of Law – the Case of Poland 运用法律工具运用记忆——波兰案例

IF 0.2 4区社会学

Review of Central and East European Law Pub Date : 2019-12-04 DOI: 10.1163/15730352-04404002

Aleksandra Gliszczyńska-Grabias

{"title":"Deployments of Memory with the Tools of Law – the Case of Poland","authors":"Aleksandra Gliszczyńska-Grabias","doi":"10.1163/15730352-04404002","DOIUrl":"https://doi.org/10.1163/15730352-04404002","url":null,"abstract":"Recent invocations of the past in the service of ideology, based to a large extent on nationalistic motives, are a particularly disturbing phenomenon in the area of the European “duty to remember” and memory laws. One of the most telling examples of this trend was Polish legislation introduced in January 2018 (partly repealed in June 2018) that penalized defamation of the Polish State and the Polish Nation by claiming their responsibility or co-responsibility for crimes committed by German Nazis in occupied Poland. Although the idea of opposing the falsification of history appears valid, the structure of the law left room for also bringing to trial those daring to ask uncomfortable questions challenging the heroic vision of Poland’s past. This article claims that legal provisions such as the Polish law represent a dangerous tool of strengthening the feeling of national community understood very narrowly and limited to one nationally, religiously and ethnically homogeneous group. This approach is directly connected with promulgation of the narrative of a “besieged castle”, which defends itself against “the Other” and demands indisputable recognition for its past sufferings. The reasons, mechanisms and consequences of recent implementation in Poland of legal and political discourse regarding the past, are discussed here.","PeriodicalId":42845,"journal":{"name":"Review of Central and East European Law","volume":"16 1","pages":"464-492"},"PeriodicalIF":0.2,"publicationDate":"2019-12-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81472391","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 0