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The subject. The article is devoted to the study of the trinity of properties of constitutional principles.The purpose of the article is to confirm the hypothesis that constitutional principles, often perceived by researchers and law enforcement officials as abstract norms with declarative content, are in fact full-fledged legal institutions that are endowed with all the necessary properties to achieve constitutional goals. In this regard, the article analyzes the property of axiomaticity, the property of presumptivity and the property of fictitiousness of constitutional principles.The methodology. The systemic-structural, comparative, formal-legal and formal-logical methods made it possible to identify and characterize the properties of constitutional principles, such as axiomaticity, presumptivity and fictitiousness. The use of these methods in their combination predetermined the appeal not only to topical problems of constitutional law, but also to issues of the theory of law, as well as other branches of law, which made it possible to most objectively and comprehensively approach the study of the properties of constitutional principles.The main results of the research. The trinity of the properties of the constitutional principle lies in the fact that the constitutional principle formulates the basic rule and determines the direction of development of the legal system and thereby has the property of axiomaticity. At the same time, the constitutional principle has the property of presumptivity due to the duty of the law enforcement officer to proceed from the assumption of compliance with the provisions of such a principle by all subjects of legal relations. Thereby constitutional principle ensures the necessary stability of the legal system of the state. At the same time, in order to achieve full-fledged stability of the legal system, along with the assumption that the subjects of legal relations comply with the provisions of the constitutional principles, it should be possible to monitor such compliance. In the absence of prior control over compliance with the provisions of the law, the solution is the application of legal presumptions. In this regard, within the framework of the presumptive property of constitutional principles, constitutional presumptions are inextricably linked with the corresponding constitutional principles. In turn, having the property of fictitiousness, the constitutional principle allows to interpret the provisions that make up such a constitutional principle and, as a result, create the necessary regulatory legal framework.Conclusions. Constitutional principles are the driving force of the legal system. They fill all legal relations without exception with legal meaning and content and have a special meaning due to their irreplaceability and the obligation to strictly observe them. In turn, the trinity of properties of the constitutional principles reflects their legal essence as fundamental normative provisions that determine the generally binding basic rules and directions of the development of the legal system, ensure the stability of the legal system of the state, and also have the possibility of timely development and adaptation to the changing legal reality.

Black loyalists in the American Revolution were early crafters of modern international asylum. Using testimony and document-gathering, enslaved people within British lines transformed themselves fr...

Legal certainty is one of the crucial law characteristics. However, legal uncertainty has both downsides and upsides thus they must be considered to be its common quality, its particular feature. Despite quite an advanced procedural legal relations regulation level due to form of action requirements, the presence of uncertain generally evaluative notions and categories in provisions of branches of procedure law is determined by the multiplicity of such legal relations. The subject of the study carried out by the author deals with specific ways of legal uncertainty manifestation in procedural legal relations regulation while justice in civil(commercial, administrative) cases is administered; the author also pays attention to identifying characteristics of specific legal instruments application in order to overcome(eliminate) such uncertainties within legal relations regulation mechanism. An application of provisions and principles, unconventional(non-traditional, innovative) sources of procedural law(law doctrine, judicial precedent), interpretations and concrete definitions, structures of presumption and legal fiction, statutory analogy and legal analogy has been suggested to be attributed to legal instruments aiming at elimination of uncertainties within legal relations regulation mechanism. The author argues that turning legal uncertainty into certainty in the area of procedural law should be carried out at the discretion of a law-enforcer when it comes to application of specific provisions, categories and structures within actual reality, social development dynamics and improvements in rights and responsibilities of participants in legal relations.

The paper questions the extraterritorial nature of foreign private law applied by the national law enforcement body in the regulation of cross-border private law relations. In view of the use of common terms “exterritorial” and “extraterritorial” in the framework of international public and private law regulation, it seems necessary to study the extraterritorial effect of foreign private law provisions through the prism of the substantive characteristics of extraterritoriality, formulated in the context of public international law. To this end, the author refers to the definition of extraterritorial jurisdiction as an international legal category and raises the question of how appropriate it is to admit, within the framework of a single definition, “extraterritorial” both the presence and absence of the manifestation of the sovereign will of the state on the territory of which any of the types of jurisdiction of a foreign state is exercised. Taking into account that the manifestation of the extraterritorial jurisdiction of one state in relation to another is realized in the absence of the latter’s sanction for its implementation, the author debates the admissibility of designation as extraterritorial foreign private law, the admissibility and limits of application of which are sanctioned by the national state.

The purpose of the article is to reveal the theory and practice of legal fiction in civil law, to determine their essential features, to reveal their technical and legal specifics. The scientific novelty lies in the actualization of further depth study of legal fiction in civil law and in legal science in general. After all, filling gaps in scientific knowledge about legal fiction will allow to adequately identify and describe real legal phenomena. The necessity of distinguishing between such concepts as legal fictions and fictions in law is argued. It is shown that with the help of legal fiction separate normative provisions are created that regulate specific social relations, institutions of law, in particular the institution of a legal entity, the institution of extraterritoriality, retroactive force of law, etc. Contractual fictions are designed to close some gaps in the conclusion of contracts. Otherwise, if the Civil Code of Ukraine did not contain such fictions for certain agreements, they would be considered unconcluded with the corresponding consequences. Conclusions. The author concludes that there are causal links between legal fiction as a norm and a method. The specificity of legal fiction is that it is an element of legal technique, as well as a way of expressing the will of the legislator. The anomaly of legal fictions is seen in the signs of fictitiousness of the rule of law, as well as in the fictitiousness of the situation itself, which requires logical consolidation. There is a deviation of the law from its inherent goals by interfering in the development of legal relations of the subjective element. The use of fiction does not help the court to establish the objective truth in the case. The expediency of legal fictions in civil law is justified by their features and functions.

The use of the legal fiction, terra nullius, as it was erroneously applied to Terra Australis, Australia, as a legal doctrine, supported the British colonial power’s right to settle that territory. Since then, many unspoken (as well as acknowledged) acts of structural and direct violence have been perpetrated against the First Nations population in Australia via the imposition, and later ‘reception’, of the legal system and laws of England, as well as the dominant socio-political system, that represented the British Crown.

The article examines the essence of legal fiction. Based on an analysis of the current legislation of the Russian Federation, the author has established ways of using legal fiction in civil law. It has been substantiated that legal fiction finds expression in the construction of a legal entity and the institution of fictitious transactions. Legal fiction is used to extend the legal regime of one object to another object, as well as the legal status of one subject to another subject. Legal fiction is used when it is necessary to overcome a situation of legal uncertainty, to recognize as real non-existent circumstances to restore the violated rights of persons who have suffered as a result of the actions of unscrupulous participants in civil-law transactions. Finally, the method of legal fiction is widely used by the legislator the legal economy. As a result of the study, a conclusion was made about the importance of legal fiction for the process of lawmaking.

In his valedictory lecture before the College de France, Alain Supiot reviews his work on the transformation of labour in the twenty‐first century, highlighting the role of law and institutions in addressing the consequences of the digital revolution and environmental crisis. In his view, the moral, social and environmental bankruptcy of neoliberalism calls for us to reconsider the legal fiction of labour as a commodity and to re‐establish the truly “humane labour regime” envisaged by the preamble to the ILO Constitution, recognizing both the meaning and content of work. He uses the case of scientific research to illustrate his argument.

The author of the article has analyzed the current legislation of Ukraine and legal literature on determining the concepts of “literary piracy”, “text recycling”. It has been proved that literary piracy as a legal phenomenon is a type of intellectual property infringement to objects that are protected as objects of intellectual property rights. It has been argued that literary piracy should not be considered as an abuse of the right to creativity by a person who commits literary piracy. Literary piracy is a generic term for academic literary piracy as a type of violation of academic honesty. It has been established that academic literary piracy and text recycling according to the current legislation of Ukraine are forms of fraudulent pretence as a type of academic honesty violation. The author has argued that if one establishes the fact of literary piracy as intellectual property infringement, the offender is subject to sanctions provided by the legislation on protection of intellectual property rights, such as compensation of damage (material damage), including lost profits, or recovery of proceeds received by an offender as a result of copyright infringement and (or) related rights. When the fact of academic literary piracy is established we apply sanctions, which are provided by the legislation on education and science, for example, cancellation of the decision of a one-time specialized scientific council on awarding a person with the PhD degree and issuing an appropriate diploma. It has been proved that text recycling is legal fiction in its essence, i.e. such a non-existent position, which is declared existing and becomes mandatory due to its enshrinement in the legal prescription. It has been substantiated that the legislation on the procedure of considering the issue of establishing academic literary piracy needs to be improved. It is also advisable to define different types of academic literary piracy at the legislative level. The author has offered to consider text recycling not as a legal category, but as a moral and ethical category in the context of ethical approaches to self-citing, academic honesty, etc.

How might the connections between anthropology and international law become more dynamic? I reflect upon this question in this essay using ethnographic insights from the documentary cycles of the UN Human Rights Committee, the treaty body monitoring state compliance with the International Covenant on Civil and Political Rights. Building on recent anthropological scholarship on international organizations, bureaucracy, and documents, this essay discusses the knowledge practices and legal technicalities that characterize the international community of human rights lawyers. In particular, I reflect on the legal fiction of difference governing UN treaty bodies’ operations and the empirical sameness of participants in different formal categories in the shared community of practice of human rights lawyers. I conclude by suggesting that anthropological insights could significantly enrich our shared understanding of the diverse and subtle effects of human rights monitoring. Simultaneously such insights may offer rejuvenated inspiration for those international lawyers tackling a sense of losing faith in their discipline, both as an influential tool of world improvement and an invigorating intellectual tradition.

In the article, the author researches the problematic aspects of silence in law, in particular, the definition of silence is provided, its meaning at various stages of historical development is outlined, the types of silence are described, the legal consequences of silence are discussed, and the place of silence in the sphere of legal conventions (legal presumptions, fictions, substitution). The author provides the following definition of silence: silence is a legitimate or unlawful inaction of the subject of legal relations, from which the conditional content of the subject’s will on a legal issue follows and (or) with which a positive law (transaction) directly connects the occurrence of legal consequences. Since silence can be interpreted as a sign of agreement or disagreement, it can be argued that it creates uncertainty. Given the fact that legal certainty in modern life is a constitutional value, positive law should exclude or mitigate this uncertainty, or the content of the will arising from silence should be predetermined by positive law or transaction. The result arising from the silence falls within the realm of legal conventions and in order to find out whether silence is a legal presumption, legal fiction or substitution, the article compares these categories. The author concludes that the legislator can formulate the same provision regarding silence both with the help of legal fiction (fictitious consent) and with the help of a legal presumption (presumed consent). At the same time, the article provides a justification for the impossibility of considering tacit consent as a legal substitution, in view of the fact that in objective reality there is no conditional silence, which is an essential reason for excluding the basis of legal substitution.

The article discusses the concept of a fictitious state, which can be defined as an international legal fiction that is created or consciously supported by real actors in international relations to legitimize illegal actions, such as annexation, evasion of obligations, seizing the assets of other states, creating a buffer zone, etc. The main feature of a fictitious state is the absence of real sovereignty in the presence of only external attributes of the state. The authors believe that fictitious states are a facet of neocolonialism. Although the number of states in the world has increased from 70 to 197 since 1945, this figure has no relation to the self-determination of peoples. The authors conclude that at present there are no legal requirements for the legal capacity of subjects of international law. Condemnation or recognition of fictitious states, as before, is determined solely by the interests of foreign policy. The authors propose to continue work on strengthening the sovereignty of the Russian Federation at the level of national legislation.

Przedmiot rozważań, prowadzonych w niniejszym artykule z punktu widzenia teorii ra-cjonalnego ustawodawcy, stanowi regulacja art. 101 ustawy z dnia 12 marca 2004 roku o pomocy społecznej odnosząca się do sposobów ustalania właściwości miejscowej gminy w sprawach doty-czących przyznawania świadczeń z tej ustawy na rzecz osób bezdomnych. O aktualności przyjętego tematu publikacji świadczy to, że problematyka nim objęta stanowi przedmiot zainteresowania przedstawicieli literatury i praktyki, organu administracji publicznej, jakim jest Rzecznik Praw Obywatelskich1, oraz jest przedmiotem licznych orzeczeń sądów administracyjnych. Regulacja ta zakłada pewnego rodzaju fikcję prawną mającą na celu zagwarantowanie osobom bezdomnym dostępu do świadczeń z zakresu pomocy społecznej2. Powoduje również pewne trudności na tle jej stosowania. Skutkują one między innymi powstawaniem sporów o właściwość między gmina-mi w sprawach dotyczących udzielania świadczeń osobom bezdomnym. Obowiązująca regulacja przekłada się na sytuację prawną osób bezdomnych ubiegających się o przyznanie im świadczenia z zakresu pomocy społecznej, gdy faktycznie przebywają one na terenie innej gminy niż gmina ich ostatniego miejsca zameldowania. W publikacji zastosowano metody teoretyczno-prawną oraz empiryczno-prawną.

The need to study the possibilities of development of legal thought in copyright is caused by the fact that imposed on the legislator since the 90s, and more actively since the 2000s, the illusion that all relations of intellectual property in general are related to trade, is not true, and regulatory approval would lead to the destruction of significant and truly human traditional institutions of the Russian system of law such as copyright. No one can argue that it is one of a kind that allows a person to get acquainted with his inner content, and hence his potentials in the scale of participation in the social order. Drawing attention to the fact that intangible benefits creative works of science, literature, art require appropriate legal protection, which, first of all, is based on respect for the personality of its author, the article refers to the fact that the material objective forms of expression of these results of human creative activity are carefully protected by national rules of law, which establish the need for gentle treatment, constant monitoring, updating, repair of cultural objects: paintings, sculptures, architectural monuments, etc. The article attempts to draw the legislators attention to the protection of creative results, which is built, at least, in two plans: at the level of protection of cultural values, carried out on the basis of generally recognized principles of international law, such as: the non-use of force and threat of force, respect for sovereignty, non-interference in internal affairs; and at the level of institutions that ensure the replenishment of the material and spiritual Fund of the Russian Federation, the main of which is copyright. And with this view of improving the norms of legislation, the state needs personnel who are rich in potential, able to actively act in their creative force aimed at creating and asserting the enduring (constant) values of humanity. The direction of improvement of legal norms on copyright is the purification of the normative body from pseudo-legal fictions that do not create consequences that favorably affect the development of creative potential of people. It is possible to think in this case when looking for ways to improve the legal technique of copyright law on the content of the concepts of creative life and personality of the author.

The article deals with the problem of ambiguity in the understanding of the Ukrainian people as the subject of property rights. The works of scientists and their understanding of this topic are analyzed. It took into account the current legislation of Ukraine, without which the understanding of this problem would be impossible. At the same time, the concepts of the Ukrainian people, the nation and the national idea were not ignored and interpreted. The ambiguity of understanding is as follows. Based on the content of property rights - the owner owns, uses and disposes of his property. However, among the subjects of land ownership, specified in the norms of the Civil Code of Ukraine, there is no Ukrainian people, which leads to a certain inconsistency in the legislation of Ukraine in the list of subjects in accordance with a special object - a land. As to such a property rights subject as the Ukrainian people, the property should be owned by the People, the useful property may be seized from the property, and the majority of them should be exercised by the bodies of state power and local government on behalf of the people of Ukraine. At the same time, the issue of managing the most important objects that are necessary for life support must remain in the management of the Ukrainian people alone. And such objects should be made for an Ukrainian referendum. Thus, it is possible to convey the solution of the most important issues concerning such objects to the hands of the Ukrainian people. However, some scholars, in the study of this topic, determine that the management of such objects is only to state bodies, while the Constitution of Ukraine provides another subject of management of the property right on behalf of the Ukrainian people - local government bodies. In addition, it is constitutionally established that all subjects of property rights are equal, therefore, the Ukrainian people are free to exercise their powers. It is also important to resolve the issue of such a method of protecting territorial integrity and protecting the land as self-defense by the people of Ukraine of their rights to land and state territory. The Ukrainian people really exist, therefore there is no reason to consider it as the legal fiction of him as the subject of property rights. Manifestations of the exercise by individual citizens, territorial communities, and all Ukrainian people of land ownership are very diverse. Ownership of the Ukrainian people is not only a public law but also a private legal category that has the right to exist.

The article discusses presumptions and fictions in labor law as means of legal technique, as well as issues of their framing and differentiation. It has been established that in the branch of law under consideration(as well as in its other branches) the legislator uses words which reflect the nature and which are a common form of expression of legal fiction to entrench the presumption in the rule of law, which contributes to the confusion of these means of legal technique. Still the main criterion for distinguishing between presumptions and fictions is not the verbal form of their expression, but the presence or absence of a degree of probability. It has been found out that the possibility of entrenching the legal fiction with the help of both typical words and without them led to the point of view questioning the use of legal fictions in labor law as special means of legal technique. The author proves the inconsistency of this point of view by explaining this possibility by the existence of two ways of entrenching the legal fiction: direct and indirect, and it is established that fictions as means of legal technique in the considered branch of law are a very common phenomenon. It is concluded that for correct identification of the above legal phenomena in legal rules and differentiation between them, one should remember that the presence or absence of presumption or fiction in a specific rule of law as means of legal technique is not determined by the presence or absence of typical words, but rather by the meaning and legal value of this rule of law which it has according to the discretion of the legislator.

How special is Centros? This contribution places Centros in internal market law. It starts by turning the judgment on its head and imagines an alternative Centros: the judgment that the Danish authorities had wished for and which the Court declined to hand down. The aim of this exercise in legal fiction is to show that the Court could have decided Centros in another way. The choices underpinning Centros are then contrasted with other internal market cases to conclude that both the real Centros and the alternative Centros are in some ways aligned with the free movement case law. It is argued that Sayde’s analysis of abuse best helps to make sense of this confusing state of play. The article ends with suggestions for further research: taking the cost dimension into account in a behavioural perspective could shed light on the allocation of regulatory powers between home state and host state.

The authors of the article focus on the problem of legal assessments and legal consequences of (not) understanding of legal documents (both normative and individual acts). Many legal norms recognize this circumstance as relevant for law, requiring the intelligibility of legal documents, though the application of its legal significance and consequences are not clear. In the researched Russian judicial practice more and more often citizens cite instances where, that in spite of provided access to а legal document, they could not follow the meaning because they could not understand them. A reason for this situation is the complicated language of legal texts, The authors conduct an analysis of Russian judicial decisions to conclude that the Russian courts usually do not acknowledge for legal purposes the fact of not understanding legal documents. This could lead to the conclusion that intelligibility of a legal document is a legal fiction recognized regardless of the facts. Nevertheless, some rare judicial judgments in Russian legal practice demonstrate that a lack of comprehension of the legal documents was acknowledged by the court. Based on this, the authors finally conclude that an understanding of legal documents can be treated as a presumption rather than fiction, but leave open the question of how this presumption can be rebutted.

This essay explains the “crisis” of online contracts, the legal fiction that consumers have assented to online contract terms when we have ample empirical evidence that they didn’t really mean to assent. The essay describes the crisis, and some possible solutions, using 10 Internet memes. The essay concludes that the crisis of online contracts may be the least-worst option among the alternatives.

This short chapter argues that, in international legal practice and literature, the actual moment where social reality has engendered a customary norm is never established or traced, but, rather, is always presupposed. According to the argument developed here, the moment custom is made is located neither in time nor in space. Custom is always presupposed to have been made through actors’ behaviors at some given point in the past and in a given place but neither the moment nor the place of such behaviors can be found or traced. In other words, there is never any concrete moment where all practices and opinio juris coalesce into the formation of a rule and which could ever be “discovered”. This means that the behaviors actually generating the customary rule at stake are out of time and out of space. Because the custom-making moment is out of time and space, it cannot be located, found, or traced, and it must, as a result, be presumed. This brief chapter first sketches out some of the main manifestations of this presumption of a custom-making moment. It then sheds light on some of the discursive consequences of presuming a custom-making moment, including those consequences for the interpretation of customary international law.

The Supreme Court has recently signaled its interest in developing a new nondelegation test, one that would have courts more aggressively police Congress’s delegations of power to agencies. This could represent a death knell for significant climate action. The technical and scientific complexity of climate change mean that it is a problem uniquely suited to redress by expert agencies. If Congress is not permitted to delegate authority to agencies to address climate change, then it will be difficult for meaningful action against climate change to be taken at the federal level. With this threat in mind, this Article evaluates the emerging basis for the Court’s new nondelegation test: Chevron. The Court has hinted that it will look to two rules developed under Chevron to guide its revived nondelegation doctrine: the major questions doctrine and the jurisdictional exception that Chief Justice Roberts laid out in City of Arlington. By grounding the long-extinct nondelegation doctrine in the robust body of Chevron jurisprudence, the Court could give the nondelegation doctrine a legitimacy and specificity that a freeform version would lack. This Article argues, however, that transplanting the rules of Chevron to the nondelegation context would be doctrinally and logically incoherent. The Article first explains how the Court’s Chevron jurisprudence is based on a particular legal fiction about congressional delegation of authority to agencies. The Court has used this legal fiction to derive limiting principles for the application of Chevron deference, such as the major question doctrine and the City of Arlington jurisdictional exception. Importantly, Chevron’s limiting principles and the legal fiction underlying them are based on a principle of legislative supremacy, i.e., the understanding that Congress is supreme in the realm of policymaking, and thus courts’ role in interpreting statutes is to be agents of Congress. By contrast, the nondelegation doctrine as it is envisioned by the current Court relies on a notion of judicial supremacy: It imagines that courts have the final say as to what is acceptable policymaking, regardless of Congress’s intentions. Transferring Chevron to the nondelegation context would therefore amount to a categorical error. As a result, the Article concludes that, given the incompatible institutional framework underlying Chevron’s rules, the Court must look elsewhere for inspiration and support for its new nondelegation test.

The American Law Institute’s proposed Restatement of the Law of Consumer Contracts has undergone a lengthy process of drafts and discussions, but the road to completion has been rocky. Indeed, only one of nine proposed sections have thus far been adopted by the ALI membership, despite years of work on the project. Much of the criticism centered on the proposal’s definition of consumer assent to (or adoption of) standard contract terms, which as currently drafted states that consumers are bound by contract terms of which they have had notice and an opportunity to review, and have manifested assent in some reasonable form. This principle would apply regardless of the fact that almost no consumers read or understand standard contract terms beyond the core terms of the transaction, especially when the terms are part of online commerce. This model perpetuates a “legal fiction” that would allow judges to assume assent even though such assent is neither informed nor meaningful. The Reporters proffer the defenses of unconscionability and deception to protect consumers from business overreach, but this approach puts an undue burden on consumers who put their faith in the law to protect them from unfair or deceptive contract clauses. At this point, the ALI should either terminate the project, reframe the project to something other than a restatement, or make some major amendments to the section on adoptions of standard terms, as suggested in this article.

Saudi Arabia grants nationality to an AI robot; the first “clash of robots” took place in Japan; and, Bill Gates suggests that robots start paying taxes. We believe that these developments justify new legal fiction interventions. Software has long now exceeded the intellectual property boundaries. It is no longer merely property; it has assumed life of its own. It does not matter that such life is imaginary today. Legal persons were brought to life through legal fiction intervention that was based on much less motivation – merely the human incentive for profit. Software is certainly connected today with profit, given that the world's most valued corporations are software companies. However, it has moved much further than that, to assume in many ways artificial life of its own. We think that it is time that the dichotomy between natural and legal persons, that has served humanity so well over the past centuries, now be trisected: A new, digital person, ought to be added to it.

The Crown and Constitutional Reform is an innovative, interdisciplinary exchange between experts in law, anthropology and politics about the Crown, constitutional monarchy and the potential for constitutional reform in Commonwealth common law countries. The constitutional foundation of many Commonwealth countries is the Crown, an icon of ultimate authority, at once familiar yet curiously enigmatic. Is it a conceptual placeholder for the state, a symbol of sovereignty or does its ambiguity make it a shapeshifter, a legal fiction that can be deployed as an expedient mask for executive power and convenient instrument for undermining democratic accountability? This volume offers a novel, interdisciplinary exchange: the contributors analyse how the Crown operates in the United Kingdom and the postcolonial settler societies of Canada, Australia, and New Zealand. In doing so, they examine fundamental theoretical questions about statehood, sovereignty, constitutionalism and postcolonial reconciliation. As Queen Elizabeth II’s long reign approaches its end, questions about the Crown’s future, its changing forms and meanings, the continuing value of constitutional monarchy and its potential for reform, gain fresh urgency. The chapters in this book were originally published in a special issue of The Round Table: The Commonwealth Journal of International Affairs.

Crimes under international criminal law (icl) are complex and are necessarily committed by complex nets of perpetrators with different degrees of responsibility. Claims have been raised against icl as a mechanism overly focused on the legal fiction of an individual perpetrator, obscuring the true collective dimension of the crimes. Despite these criticisms, icl has incorporated a mechanism to address this collective dimension, at least on the side of the victims: collective reparations. However, the emerging use of collective reparations faces important challenges in an avenue based on an individual-perpetrator logic. Here, I identify current difficulties in the early practice of collective reparations in international criminal justice. These difficulties relate mainly with procedural issues and the role of the ‘adjunct mechanisms’ such as the Trust Fund for Victims (tfv). I submit that these difficulties reflect the inherent tensions present in the asymmetrical treatment of the collective dimension of the crimes

This paper discusses nationality of a person, whether physical or legal, and compares and contrasts the international legal regime which regulates the nationality of both persons. Whilst humans are granted nationality because they are citizens of a state to which they owe allegiance, in the case of a res which enjoy nationality – such as a ship – the relationship between such a res and its national state is based on a functional dimension. A ship oftentimes navigates in areas beyond state jurisdiction (such as on the high seas) ending up in a legal vacuum if she enjoys no nationality to regulate its behaviour and whatever happens on board that ship during its extra-territorial voyages. The authors thus discuss the juridical nature of nationality, nationality of a res and of humans, and reflect upon the recent sale by states of their nationality to noncitizens thereby shifting human nationality closer to the commodification of nationality of which ships are a traditional instance. It concludes that nationality of ships and of humans has in some legal systems moved away from the classical International Court of Justice’s Nottebohm case requirement of a pre-existing genuine link to one where nationality is reduced to a commodity., peer-reviewed

This article challenges the immutability of legal professional privilege and adopts, as its focus, the profound impact of Lord Taylor’s aphorism in R v. Derby Magistrates’ Court; Ex Parte B. By affirming the absoluteness of legal professional privilege this decision, made at the highest level of the English judicial system, placed the nature of legal professional privilege beyond doubt. In drawing out the fallible judicial pronouncement, this article argues that the ruling amounts to a legal fiction and concludes that the twentieth century incarnation of the principle has evolved into a rigid rule carrying a far greater certainty than historically intended. Utilising Jeremy Bentham and John Henry Wigmore to inform the debate, this article notes that the continuing significance of these preeminent scholars lay in the fact that they, unlike their predecessors, adopted a broad view of the subject of evidence. Together they pioneered a homogenous intellectual tradition in which their thinking was instrumental to the way in which the privilege evolved and infiltrated judicial thinking. Accordingly, this article analyses how their respective philosophies shaped Derby’s sweeping pronouncement.

Whether causing flash crashes in financial markets, purchasing illegal drugs, or running over pedestrians, AI is increasingly engaging in activity that would be criminal for a natural person, or even an artificial person like a corporation. We argue that criminal law falls short in cases where an AI functionally commits a crime and there are no practically or legally identifiable upstream criminal actors. This Article explores potential solutions to this problem, focusing on holding AI directly criminally liable where it is acting autonomously and irreducibly. Conventional wisdom holds that punishing AI is incongruous with basic criminal law principles such as the capacity for culpability and the requirement for a guilty mind. Drawing on analogies to corporate and strict criminal liability, as well as familiar imputation principles, we show AI punishment cannot be categorically ruled out with quick theoretical arguments. AI punishment could result in general deterrence and expressive benefits, and it need not run afoul of negative limitations such as punishing in excess of culpability. Ultimately, however, punishing AI is not justified, because it might entail significant costs and it would certainly require radical legal changes. Modest changes to existing criminal laws that target persons, together with potentially expanded civil liability, are a better solution to AI crime.

Popular sovereignty is often said to mean that state power emanates from the people. Given this, one might ask how it is possible that state power emanates from the people, and what is meant by state power in this context. This starting point implies that sovereignty is not (only) a legitimizing notion or legal fiction, but that state power actually and as a matter of fact emanates from the people. This understanding of popular sovereignty, briefly summarised, describes the extra-legal power of a people to constitute, maintain and deconstruct a legal system. In this chapter, I explain the elements of this definition, starting with the question why it is necessary that this be an extra-legal power and what this means (Sect. 3.1). Thereafter, I elaborate on the core of popular sovereignty, namely the power to constitute, maintain and deconstruct a legal system (Sect. 3.2). In explaining how this can be done, I draw inspiration from HLA Hart and Jean Hampton and their use of social conventions, while arguing that social rules are much better suited as a basis for constitutive sovereignty than a social convention (Sect. 3.2.2).

The metaphor that corporations are people has been around for at least 150 years. While the metaphor that money is speech is more recent, both metaphors conceal some basic problems. Yet both metaphors are implicitly used in Supreme Court jurisprudence, most infamously in the 2010 Citizens United decision. This paper challenges both metaphors, and suggests new ones: corporations are tools, and money is a megaphone. If we use those metaphors to think about the corrupting influence of money in our political system, perhaps we could get to more sensible decisions. The paper ends with a survey of current efforts around the country to overturn Citizens United through an amendment to the United States Constitution.

Virtually all wrongful life claims (those brought by children harmed prior to gestation), are denied. The basis for these holdings pivots around refusal to allow recompense for actions which result in the child’s being born, an offshoot of cases where parents are denied the right of abortion. We therefore are faced with a legal lacuna, where children suffering serious harms as a result of wrongful genetic manipulation (WGM) caused by the latest reproductive technologies are legal orphans. This article details avenues of potential harm generated by the latest technologies before proceeding to create a legal fiction, “the conceptual being” which would enable these children to bypass current restrictions and claim an expanded class of damages, including pain and suffering, emotional injury and unjust enrichment.

Following an introduction to the system of criminal proceedings established in Portugal, this chapter describes the participatory rights of private parties (accused, defence lawyer and victims) in Portuguese criminal proceedings. It covers pre-trial, trial and appellate stages and cross-border cases. It is shown that victims have a broad intervention in Portuguese criminal proceedings. The accused is also vested with a broad range of participatory rights and enjoys a robust right to legal assistance. However, such rights remain quite limited in pre-trial stages. The chapter also considers the law in force concerning in absentia trials, which makes them into a commonplace occurrence rather than a measure of last resort. This essentially derives from a combination of the obligation to make a Statement of Identity and Residence, combined with expedited means of serving procedural documents based on a legal fiction of knowledge by the accused, as well as a narrowly designed obligation for the judge to postpone the trial only where he/she believes that the presence of the accused is absolutely indispensable from the outset of the trial hearing. This system is not balanced by the establishment of a right to a re-trial or to lodge an appeal allowing for a fresh determination of the merits of the case, including the right to present new evidence, which makes it hardly compatible with European Law, in particular the case law of the European Court of Human Rights and the newly approved Directive 2016/343/EU. European Law may therefore require that domestic law is reformed in this regard.

La finalidad de este trabajo es la de analizar los argumentos retóricos presentados como elementos de prueba por las partes litigantes en procesos criminales juzgados en la Real Audiencia de Lima, a finales del siglo XVIII. Intentaré mostrar cómo una de las cuestiones más importantes, en procesos de “difícil probación”, eran las presunciones legales y las conjeturas, y cómo esos medios de prueba no eran tan solo una ficción jurídica, sino, también y, principalmente, una cuestión de argumentación retórica, filosófica, moral y teológica. La hipótesis que sustenta este trabajo parte de la idea de que las presunciones legales al fortalecer, tanto lo que se piensa habitualmente como lo que ocurre generalmente, terminan confirmándolos, negándolos o modificándolos, a partir de los procesos históricos y sociales. A partir de los casos analizados, intentaré mostrar la lógica retórica y argumentativa y los cambios semánticos ocurridos con relación a la “patria potestad”. La fuente documental se encuentra en el Archivo General de la Nación, en Lima, sección Real Audiencia, Causas Criminales. Serán utilizados dos procesos por crimen de rapto y estupro, uno antes y otro después de la publicación de la Pragmática Sanción, con una diferencia, entre ambos, de 48 años.

Relevance. The article is relevant since the recent events have revealed the illusory nature of democratic principles and the independence of private interests in the Russian Federation. The illusion of free choice and democratic procedures disappeared when public authorities declared a state of emergency or self-isolation regime (quarantine during the COVID-2019 pandemic) facing a force that exceeded the resources and capabilities of the government systems. Objective. The article aims at studying a new global model of expanding public law into the sphere of private interests due to strengthening the state regulation of public relations as a new management paradigm. The current model typical of many countries, in particular Russia, can be called a model of an actual emergency. The Russian Federation did not declare de jure state of emergency. Otherwise, public authorities would have to take on big obligations and be responsible for losses (damages, contract failures, suspended trading and production, downsizing, unemployment) of their citizens and businesses. Methods. The main research method was deduction used for studying the legal specifics of expanding public law into the sphere of private interests. The author of the article also used the inductive, comparative-legal and historical methods, as well as the method of systematic scientific analysis. To solve the task, it is necessary to consider the legal foundations and features of strengthening state regulation as a new management paradigm. Results. Analyzing the actual state of emergency experienced by most countries and considering the actions of the Russian authorities, the author claims that public law serves as the basis of public administration but invades the sphere of private interests. It begins to manage it in a state of emergency to preserve the existing state system and its integrity. As a result, private law ceases to be independent and must obey the rules of public law. At the same time, the democratic traditions and principles proclaimed in the Constitution and other laws, human rights and civil freedoms are instantly absorbed by public law and become a legal fiction for a certain time.

Traditionally, the territorial regimes of the Islamic Law of War distinguish between armed conflicts which take place within the Islamic territory and those which are waged against non-Muslim enemies. The regimes have respectively been legalized into the abode of Islam, i.e. the dar al-Islam, and the abode of war, i.e. the dar al-harb. Yet, the bifurcation of the world order into different spheres was a legal fiction which did not have any textual support in the primary sources of Islam, i.e. the Quran and the Sunnah. From the eighth century onwards, they would serve as a legitimation to consolidate their territorial conquests and to manage internal affairs accordingly. The construction of these regimes has ever since perpetuated in the analysis of contemporary conflicts thus reinforcing the existence of these fictions which have started to live their own realities. Nonetheless, the Quranic provisions do provide wisdom in transcending some of the divisions which mankind – Muslim and non-Muslim alike – have imposed upon themselves. In this regard, their common belonging to God’s creation is a departure from the current legal discourse – in pursuit of the command to do good and to forbid evil, namely to respect humanity in its diversity.

This chapter addresses one of the assumptions of standard agency theory—that the corporation is a legal fiction. It sets out a series of arguments as to why this assumption is incorrect, explains why public corporations should be regarded in ontological terms as real entities, and spells out why this matters—the consequences for agency theory as a whole and the particular consequences for shareholders and directors.

En el trabajo que sigue se partirá del conocido texto de Lacan sobre “el sacrificio a los dioses oscuros” y los fenómenos del nazismo, para mostrar su extensión sin la necesaria investigación a los fenómenos que en esta América surgen de la cita fallida entre las culturas., This work is based on the well-known Lacan’s text on the sacrifice to dark gods and Nazi phenomena to show how they are expanded into This America phenomena deriving from the failed cultural encounters without being deeply investigated., Dossier: La justicia del derecho y del revés., Hospital Interzonal General de Agudos "Prof. Dr. R. Rossi"

The article analyses the new “digital platform permanent establishment” concept as a legal fiction establishing a fixed place even in situations where there is no actual fixed place. The authors conclude that in the Slovak legal environment this concept is not capable of (i) being applied through the interpretation of the tax treaty, or (ii) overriding the tax treaty. Its practical implications in a tax treaty situation must be analysed on a case-by-case basis. The ineffectiveness of the concept mainly stems from the fact that Slovak statutory rules are generally incapable of overriding tax treaties. It may still be applicable in a dualist legal environment, but international law treaty override implications would still remain valid.

According to received wisdom, there is no such thing as a Chinese tradition of corporation law. In Max Weber’s pithy conclusion, “The legal forms and societal foundations for capitalist enterprise were absent in traditional China.” Although this claim is intuitively appealing, it is incorrect, or at least wildly exaggerated. Drawing on earlier work, I argue in this chapter that in late imperial China there existed a tradition of “corporation law,” to use a term that admittedly sounds anachronistic. Conventional wisdom to the contrary notwithstanding, and despite Confucian hostility to commerce, even before the introduction of European law at the turn of the century, the Chinese operated “clan corporations,” or relatively large commercial enterprises whose existence was justified by the legal fiction of kinship. Because of this fiction, these enterprises were governed by the norms of family law which in turn performed many of the key functions of corporation law.