The article examines the methodological principles of legal technique as an important tool for ensuring the effectiveness of law-making and law-enforcement activities. The author analyzes modern approaches to defining legal technique, its structure, principles and functional purpose. Particular attention is paid to the methodology for constructing regulatory legal acts that meet the requirements of logical coherence, regulatory clarity, linguistic accuracy and legal certainty. The main problems that arise in the process of implementing the law-making function of the state under conditions of rapid socio-legal transformations are revealed, as well as ways to overcome them through improving legal and technical tools. The relationship between the quality of regulatory legal acts and respect for human rights, legal security, and predictability of law enforcement is analyzed. The focus of the study is the role of legal technique in ensuring the consistency of the legal system and its adaptability to changes. The author emphasizes the importance of integrating methodological approaches of legal science into the practice of norm-setting and law enforcement, which allows ensuring not only the formal but also the material effectiveness of legal norms. The article offers recommendations for improving the level of legal culture of law-making and law-enforcement entities, and also emphasizes the need for systematic updating of the methodological base of legal techniques taking into account the latest legal realities. In general, the article emphasizes the need for further research in the field of legal technique methodology and the implementation of modern approaches to its improvement. Legal techniques are not only a tool for creating legal norms, but also an important mechanism for ensuring their quality, which is of decisive importance for the development of the legal system of Ukraine and its integration into the European legal space.
The article is devoted to the study of scientific paradigms, in particular scientific paradigms in law. It reveals the essence and features of scientific paradigms based on the analysis of scientific works. Attention is drawn to the fact that the term «paradigm» entered the system of scientific knowledge by historical standards quite recently, in the second half of the twentieth century. This term owes its wide scientific use in the philosophy of science to the book by Tamas Kuhn, published in 1962 under the title «The Structure of Scientific Revolutions. An analysis of this work shows that the author considered science primarily as an activity carried out by different schools. At the same time, a paradigm is what unites members of the scientific community, and vice versa, the scientific community consists of people who recognize the paradigm. The authors of the article point out that each paradigm corresponds to a certain type of scientific discourse, scientific rationality. With the change of paradigm, the type of rationality changes, since rationality is, on the one hand, expediency, and on the other hand, one of the most important methods of science. Rationality cannot be non-paradigmatic, since rationality in general should be considered as compliance with the laws of reason, the laws of formal logic, and scientific rationality as a pure case of rationality. Researchers draw attention to the fact that the theory of paradigmatic science, which was developed by T. Kuhn, although not designed for social sciences, can still be applied to them. Investigating paradigms in law, the authors come to the conclusion that the vast majority of researchers understand the paradigm in law as the prevailing worldview guideline of individual and social assessment of law in solving scientific and practical problems of law enforcement. Attention is drawn to the fact that the recent trend in the philosophy of law is to turn to the multiplicity of the nature of the paradigm, which is probably explained by the rapid development of scientific knowledge, including interdisciplinary, and is also associated with socio-economic and political-legal events that are taking place. In this regard, we can state that jurisprudence has its own «family» of paradigms, which are a set of theoretical and methodological foundations used by the legal community and create the framework of scientific knowledge, acting as its fundamental construction.
It is indicated that in the system of civil legal relations, territorial communities act as equal subjects along with other participants. However, modern legal doctrine and current legislation are characterized by the lack of a unified understanding of the legal status of territorial communities. In addition, the issues of their legal personality and the peculiarities of the mechanisms for implementing their participation in civil legal relations remain insufficiently studied. In the article, the author examines territorial communities as subjects of law. The author considers approaches to the legal nature of the territorial community, the article analyzes the concept of the territorial community, theories of origin and signs. The article examines the legal status of municipalities in Germany as legal entities under public law, the latter belong to public corporations operating on the basis of membership, state supervision of the activities of such corporations must be established. The author analyzes the issues of possession of legislative, administrative, personnel sovereignty by German municipalities. The article analyzes the characteristics of a territorial community as a legal entity: organizational unity, the presence of property, civil liability, and circulation on its own behalf. The article analyzes judicial practice regarding the issue of legal personality of a territorial community. Thus, the territorial community is a subject of civil legal relations, which participates in these legal relations on an equal basis with natural persons, legal entities and the state. At the same time, the recognition of legal capacity by a territorial community by virtue of a direct norm of the Central Committee of Ukraine excludes the need to obtain such status through state registration as a legal entity under public law. The author considers the legal form of participation of the territorial community in civil relations. Thus, analyzing the current legislation, territorial communities can create legal entities under public law, in particular, the creation of communal enterprises, joint communal enterprises, educational institutions. The article pays attention to the analysis of judicial practice regarding the responsibility of the local selfgovernment body for the activities of established communal enterprises. The author considers the issues of forms of management of communal property, the article outlines the legal problems associated with the definition of the legal regime of the property of a communal enterprise, the characteristics of objects of communal property law.
The article examines the specifics of the legal regulation of insurance relations in the conditions of martial law and the functioning of the insurance services market under the conditions of force majeure. On the basis of the analysis of scientific literature, regulatory legal acts, norms of current civil legislation and court practice, the peculiarities of providing insurance services under the condition of force majeure in the conditions of martial law were investigated. The destruction of the housing stock and infrastructure, significant damage, which became the inevitable consequences of the war in Ukraine. It was established that the insurance institute is one of the effective mechanisms aimed at providing compensation and compensation for losses to citizens as a result of military operations. Insurance is aimed at protecting the property interests and safety of both individuals and business entities. It is noted that the occurrence of insurance events related to the loss of housing stock and other property by citizens of Ukraine as a result of military operations after February 24, 2022, should not be a reason for refusing to pay insurance compensation. It is proven that the introduction of the legal regime of martial law with the beginning of the war involves the possibility of limiting the constitutional rights and freedoms of a person and a citizen, the rights and legal interests of legal entities. At the same time, the fact of the introduction of martial law should not affect the validity of any transactions, including the validity of insurance contracts, and all rights and obligations of the parties remain valid. Insurance contracts are valid regardless of the introduction of martial law in Ukraine, with standard force majeure clauses that apply to other types of contracts. It is noted that the war in Ukraine belongs to force majeure circumstances (circumstances of irresistible force). It is established that insurance does not constitute any exception in the context of force majeure. It is noted that the parties to the insurance contract may refer to force majeure as a basis for releasing them from liability for non-fulfillment of the terms of the contract. In order to improve insurance activities during the period of martial law, the National Bank, as a regulator in the market of insurance services, on February 27, 2022 recommended to insurers to simplify the procedure for settling cases that have the characteristics of insurance, by making maximum use of electronic documents and copies of necessary documents in case of impossibility or complications the possibility of obtaining their originals, as well as using other means of remote settlement of insurance cases. Based on the results of the research, it is summarized that the market of insurance services in Ukraine during the period of martial law should work taking into account the emergence of new challenges.
The Covid or Chinese flu pandemic put a number of countries in a state of emergency. Whether this state is explicitly a state of emergency is not decisive, since various legal systems use various terms, but it is decisive that in respect of its power the Czech state uses collective and blanket bans to regulate persons differently than under normal conditions.The article deals with the impact of the Covid pandemic on the legal system. It points out to the deficiencies in the current legislation. Its basic idea is that the fundamental legal solution to states of emergency must be represented by constitutional regulation. It determines areas in which the Constitutional Act on the Security of the Czech Republic should be amended. Constitutional embodiment of emergency lawmaking with executive power is suggested along with introducing controls by the Chamber of Deputies and with obligatory inspection of emergency legislation acts by the Constitutional Court. It is also suggested for a form of legislation to be thoroughly used for blanket bans and orders in preference to a form of a special administrative decision – measure of a general nature.The experience with the Covid pandemic approved that the legal solution to a crisis must stem in the constitutional legislation. A regular act cannot represent the basis. This constitutional legislation may in the future also be the constitutional act on security. Although it is appropriate to amend it in the following areas:1. Introduce the possibility of emergency legislation issued by the executive power.2. Introduce parliamentary review of individual emergency legislation acts. 3. Introduce mandatory review of emergency legislation acts by the Constitutional Court.4. In the case of general bans issued by the Ministry of Health amend their provisions from general nature to sublegal regulation.
Shiner has produced a valuable contribution to the field of analytical jurisprudence. He remains faithful to the investigative and exploratory task that he set for himself. Legal Institutions and the Sources of Law can be usefully consulted by anyone interested in the idea of a “source of law”. And it can certainly be used as an authoritative reference by those legal and political theorists who wish to pursue a fuller normative approach to law or politics.
The present study seeks to examine and identify the shortcomings in the implementation of the privatization law from a normative perspective and to evaluate their compatibility with the principles of the Iranian Constitution and authoritative jurisprudential sources. In recent decades, with governments shifting from a traditional public administration model toward the New Public Management (NPM) paradigm, privatization has emerged as one of its core principles. Privatization has been defined as an economic policy aimed at balancing governmental activities with those of other economic sectors, with the goal of fostering conditions of perfect competition and achieving greater economic and social efficiency. Its objective is to minimize the government’s continuous and ongoing activities. Given the implementation of four development programs since the Iranian Revolution, the question arises as to what measures should be considered in privatization so that, alongside realizing its intended objectives, the negative consequences of its implementation can be reduced to the lowest possible level.
One of the most important powers that judicial authorities hold in the fight against crime is the right to detain suspects and accused individuals. It is possible that the final outcome of criminal proceedings may result in acquittal or dismissal of charges against an individual. The damages incurred by the suspect or accused person are issues that require discussion and analysis. Therefore, the aim of this article is to examine the doctrinal and legislative scope of the compensation system for unjustified and unlawful detention in Iranian and French law. This article is descriptive-analytical, employing a library research method to explore the subject in question. Findings suggest that, in Islamic jurisprudence, compensation for the harm inflicted on the victim is accepted. At the same time, the legislative scope for compensating unjustified detention in Iranian law can be found in the regulations of the Civil Procedure Code, the Civil Liability Law, and other laws such as the Islamic Penal Code and specific regulations, as well as judicial precedents. In French law, compensation is studied within the framework of civil laws and the doctrine of judicial liability for temporary detention. The conclusion is that the legislative scope of compensation for temporary detention in Iranian and French law can be found across various laws, judicial precedents, and legal doctrines. In both legal systems, such damages are compensable by the state, although the laws of both countries have acted differently under certain circumstances.
Maryam Kohansal Kalkenari, Mohammad Javad Bahreini, Alireza Asgari
The issue of the wife's financial rights, as one of the most important topics in family law, has always been a focal point for jurists and legal scholars. However, there remain shortcomings in the legislation, issuance, and enforcement of rulings on this matter. This article, in line with the directives of the Supreme Leader under the general policies of the family, which emphasize the necessity of "reviewing, amending, and completing the legal system and judicial procedures in this field, in accordance with new needs and circumstances," focuses on the pathology of the Family Support Law of 2012 concerning the wife's financial rights. The goal is to outline the achievements and identify the issues that require "review, completion, and amendment" in this section of the law. The findings of this study reveal deficiencies such as the legislator's neglect of the principle of governmental support for women regarding the financial rights of temporary wives, and the issue of enforcing the payment of dowries in line with the policy of decriminalizing imprisonment. Other shortcomings include the failure to address substantive gaps in most matters of the wife’s financial rights, the lack of specification on certain instances of those rights, failure to address issues like "Nahla" (alimony) and the condition of asset division, the creation of rulings without consideration of their potential negative consequences, and the lack of explicit repeal of the Family Support Law of 1974. Among the achievements of the Family Support Law of 2012 are the creation of new governmental protections for women, such as the provision allowing lawsuits against the husband in the wife’s place of residence, addressing gaps in claiming damages during engagement, the establishment of the possibility for the wife to claim her personal expenditures in the shared life, and changes to the law regarding the claim for wages from personal income during married life.
Abstract The creation of law cannot be authorized by law ‘all the way down’. Its ultimate foundations lie in a complex of acts and attitudes among its officials. These amount to customary norms. Some legal philosophers go further and argue that these customs are conventions in the sense that they solve complex problems of cooperation. This chapter explores the strengths and weakness of that view, concluding that it must be rejected. The basis of law lies in various customary norms that legal officials treat as obligatory. Conventions are never in themselves obligatory. But this is not because they fail to explain the ‘normativity of law’. Properly understood, there is no such puzzle to explain. Conventions are norms of the wrong structure. At base, law is as much about conflict as it is about consensus. Conventionalism is a misleadingly consensual view of law.
Claims of “judicial overreach” currently disrupt the World Trade Organization (WTO), investor-state arbitration, and multilevel judicial governance in the European Union. Section II discusses the postwar evolution from the neo-liberal “Washington consensus” to the ordo-liberal “Geneva consensus” promoting global human rights, multilateral trading systems and transnational rule of law based on UN/WTO law. The neoliberal US assault on WTO law and adjudication (discussed in Section III) and China’s totalitarian state-capitalism (Section IV) challenge multilateral treaty systems and related adjudication protecting global public goods. The claims of “judicial overreach” in multilateral trade, investment and European adjudication (discussed in Section V) reveal systemic conflicts among regulatory and judicial approaches. Section VI concludes that EU law requires defending the “constitutional functions” of ordo-liberal integration law through EU leadership for plurilateral WTO reforms; economic, environmental, and human rights litigation in Europe confirm the need for participatory governance in multilevel legal and judicial protection of the UN/WTO sustainable development goals.
This article conducts a comparative analysis of the rights of religious minorities in the constitutions of Afghanistan and Pakistan. Given the profound influence of Islam on the political and legal frameworks of both countries, their constitutions contain provisions that directly and indirectly define and limit the rights of religious minorities. The paper explores the similarities and differences in the general principles, rights, and freedoms of religious minorities in these two nations, and examines the common and unique challenges and obstacles in the implementation of these rights. The findings indicate that both countries face similar challenges, such as the influence of extremist religious groups and the weakness of judicial and executive institutions in protecting minority rights, although differences exist in their approaches to addressing these issues. Finally, the article offers recommendations for improving the status of religious minority rights in both countries.