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The concept of legal families is familiar to most comparativists and although miscegenation is an increasingly common feature in a global community, arguably an understanding of family origins may help to anticipate differences of approach, ideology, attitudes to law and diverging normative values. Classification into families, despite various criticisms and disagreements as to which families there are or how they should be distinguished, provides a useful tool for the comparativists and those seeking, reform, unification or harmonisation.The Scottish legal system, however, is one that tends to elude classification. Even where “mixed” or “hybrid” legal systems are recognised, that of Scotland may be omitted or distinguished from those of, for example, Greece, South Africa, Israel or the Seychelles.This begs the question, what is a legal system and how is it distinguished? This paper examines the Scottish legal system, taking as its starting point a focus on juristic style as the key distinguishing feature of a legal system and looking at the key elements that eminent comparativists Zweigert and Kötz suggest shape this. These are: the historical background and development; its typical mode of thought; its distinctive institutions; the types of legal sources it acknowledges; and its ideology. Looking particularly at the academic debates that have arisen in Scotland concerning the nature and identity of Scots law, the paper goes on toconsider whether the claim to a distinct legal system is anything more than a manifestation of the fact that “each political society in the world has its own law”,1 and that in fact the time has come to abandon the notion of families.

The search of legal precedence orstare decisishas always distinguished the lawyer who is in professional practice. The development of the internet has led to a greater dimension in this research and to an empirical approach to understanding the application of law. The academic lawyer has always needed access to the newest legislation and case law and the online search engines are of increasing relevance to accessing the virtual library. This is necessary to assimilate because of the impact of law and technology which is not just of relevance to find texts but also the process of artificial intelligence that is of utility in forms of inquiry. It includes portals that can be sourced online, Lexis and Westlaw which have available software packages that are available for lawyers. The issue is if the technology is moving at excessive speed or is the momentum of digital technology sustainable within the profession. This article argues that legal software provides the means for artificial intelligence in an increasingly specialist field and it is necessary for professionals to stay equipped with knowledge updates on computer terminals in order to enhance their research or lose out in the information supply chain.

User-generated online reviews have become essential sources of information for potential consumers. Given the increasing importance of online reviews on consumer purchases, some traders try to publish or promote fake reviews on online platforms to improve the reputation of their goods or services, or to damage the reputation of their competitors. This paper aims (1) to analyse whether and how fake reviews violate the main legal and ethical principles of advertising, according to the legislations of the US, UK and EU as well as the International Advertising and Marketing Communications Code; (2) to assess how the EU, the UK and the US are dealing with them, and find out which approaches and actions are working best; and (3) to offer normative recommendations for effective prosecution of fake reviews. The paper uses a combination of theoretical and sociological approaches (section 1), black letter analysis of law (sections 2 and 3) and a comparative approach (sections 2 and 3). Among others, the article observes (1) that fake reviews are a form of illegal advertising and (2) that the European regulatory instruments provide more protection against fake reviews than the US and argues (3) that an effective fight against fake reviews requires strong administrative bodies, endowed with sufficient resources.

Artykuł jest próbą zarysu prawa chińskiego za czasów Qing, ostatniej dynastii rządzącej Chinami. Przedstawia on moralne i filozoficzne podstawy, na których został zbudowany tradycyjny chiński system prawny długo przed dojściem do władzy cesarzy Machu. Autor artykułu stwierdza również, że to kultura, a nie natura określa prawo i moralność, a idea etyki uniwersalnej jest utopia. Istnieją pewne różnice miedzy prawem zachodnim a jego chińskim odpowiednikiem. Niektóre przepisy Kodeksu Qing mogą być dla nas dzisiaj zaskakujące, chociaż łatwo je zrozumieć, jeśli bliżej im się przyjrzeć. Z chińskiego punktu widzenia prawo zachodnioeuropejskie można nazwać „nowoczesnym”, bo zostało przyjęte we współczesnych Chinach na początku XX wieku. W artykule pada propozycja odpowiedzi na pytanie, dlaczego Chiny zostały zmuszone do porzucenia swojej tradycji prawnej i przyjęcia w jej miejsce zachodniego prawa kontynentalnego. This paper attempts to sketch an outline of the Chinese law during the Qing, the last dynasty to rule over China. It also depicts the moral and philosophical basis on which the traditional Chinese legal system had been built long time before the Machu Emperors came to power. The paper also postulates that that it is culture rather than nature that determines law and morality, and the idea of universal ethics is but a utopia. There are some stark differences between western law and its Chinese counterpart. Some provisions of the Qing Code can be surprising for us today, although they become easy to comprehend, when looked at more closely. From the Chinese perspective, the western law can be called “modern” for it has been adopted by modern China since the early 20th century. The paper proposes an answer as to why China had to forsake its legal tradition and adopt the western continental law in its stead.

The skepticism of the American Legal Realists and their heirs threatens to make a politically neutral science of law impossible and thus to undermine the liberal polity which needs such a science. Ronald Dworkin attempts to refute the skeptics and defend both legal theory and liberalism. However, the author points out, Dworkin and liberalism are themselves skeptics when it comes to moral principles, and, therefore, they cannot wholly escape from similar skepticism with regard to legal principles. Both Anglo-American and Continental legal history are examined in the course of these arguments., Le scepticisme des théoriciens de l’école réaliste américaine et de leurs disciples compromet l’élaboration d’une science juridique non partisane et, par conséquent, menace l’État libéral qui a besoin de cette science. Ronald Dworkin tente de réfuter les arguments des sceptiques et vient à la défense tant du libéralisme que de la théorie du droit. Toutefois, l’auteur souligne que Dworkin et la pensée libérale font eux-mêmes preuve de scepticisme à l’égard des valeurs morales et ne peuvent donc s’en départir entièrement à l’égard des principes juridiques. C’est dans ce contexte qu’il examine l’évolution tant du droit anglo-américain que du droit continental.

The comparative law concept of legal transplants has long been used as a device to describe or explain major changes in Japanese corporate law. The past twenty years have seen an extended series of major reforms in that field, many of them inspired by outside, and particularly American, models. This era of reform is notable for the fact that it is taking, in simple terms, a really long time. This paper frames the evolution of Japan’s rules on corporate director compensation in this period as a kind of “long” legal transplant. It examines three features of this process which are associated with its. The first of these is that the long attempt to introduce elements of American style executive compensation and legal rules related thereto has resulted in the black letter law on director compensation in Japan becoming significantly different from, rather than similar to, its American counterpart. This is in part owing to functional differences in the rules, but also the result of a long process of legislative tinkering with the rules in Japan that over time have created a vastly more complex system. The second is that normative ideas related to how and why executive pay is regulated have evolved along significantly different paths in Japan and the United States over the course of the long transplant, which has created an odd reversal in the evolution of rules in each relative to each other. Finally it looks at the role of scandal provided by the Carlos Ghosn case which revealed a major problem with how imported norms on pay created incompatibilities with pre-existing systems they were incompatible with. Ironically instead of providing a metaphor for a transplant being run out of town as a result of this incompatibility, the case seems, at least at the firm level, to have further encouraged the adoption of American style mechanisms for regulating pay. To the general literature on transplants this paper offers a case study which suggests that the dynamics of long transplants are quite different from the traditional “one-off” transplant where the act of reception of the rule is treated as conceptually distinct from what follows (how it is accepted in its new context). The features outlined herein certainly do not represent a model in themselves, but rather demonstrate how a long transplant, simply by providing time for actions, reactions and random events like major scandals to occur, can cause the rules to evolve in ways that earlier notions of transplants fail to account for. To the literature on Japanese corporate law the paper suggests that, to the extent that it continues to rely on the transplant concept to explain reform it needs to take into account the prolonged and extended nature of the current reform process which applies not just to the rules on director compensation but to a number of other areas as well.

In 2015, the American Law Institute (ALI) launched a project to create a Restatement of the Law, Copyright. Concern, objection, and disagreement about the ALI’s Restatement projects is not new, but the Restatement of Copyright project seems to be particularly controversial among industries dependent on copyright protection. The drafting group has now worked through several versions of some proposed sections; a handful of these have been approved by the ALI Council and are ready to go before the ALI general membership. So now is a good time for close analysis of the chunks of the projects that have crystallized. This Article reviews the 2020 draft Restatement’s presentation of American copyright law’s threshold requirement for protection: that copyright protects only “original works of authorship,” and how that “originality” requirement should be understood in light of the Supreme Court’s 1991 decision in Feist v. Rural Telephone. Copyright’s originality requirement is a challenging subject for a Restatement because what is unquestionably agreed is that black letter law is limited, formulaic, and opaque. Not surprisingly, the Restatement’s handling of this topic hews close to the words of the Supreme Court’s modern pronouncement on the issue, sometimes to the detriment of a richer, potentially more enlightening discussion. The discussion here is based principally on “Tentative Draft No. 1” of the Restatement, released on April 8, 2020,3 but the discussion will also include consideration of the earlier “Council Drafts”4 that led to the 2020 proposal. Part I of the Article briefly describes the controversial beginnings of this Restatement project—and, as of 2021, the continuing animosity of copyright stakeholders to the project. Part II lays out the 2020 draft Restatement’s core provisions on copyright originality, the modest evolution of these provisions since the 2017 draft, and some concerns with what these sections, Comments, and Reporters’ Notes say. In broad strokes, the draft Restatement’s take on copyright originality is faithful to the Supreme Court’s 1991 Feist v. Rural Telephone decision, perhaps too much so. Part II.A explores the draft Restatement’s presentation of Feist’s “modicum of creativity” requirement, raising some issues both with what the Reporters have said so far and equally with what the draft Restatement seems unwilling to say about minimal creativity. Part II.B discusses the draft Restatement’s presentation of Feist’s “independent creation” requirement; here the concern is that the draft may conflate independent creation with minimal creativity in a way that does not contribute to coherence in copyright law.

Posthumous medical data donation (PMDD) for the purpose of legitimate, non-commercial and, potentially, very beneficial medical research has been sparsely discussed in legal scholarship to date. Conversely, quite an extensive social science and humanities research establishes benefits of this practice. It also finds that PMDD enables individuals to employ their altruistic motivations and aspirations by helping them participate in ‘citizen's science’ and medical research, thus supporting efforts in finding cures for some of the acutest diseases of today. There appears to be no jurisdiction where a regulatory framework supports and enables PMDD. This paper analyses whether and to what extent law and policy should enable this practice. We take a comparative approach, examining the position under both US and UK law, providing the first comparative legal account of this practice. We do not aim to suggest a detailed legal solution for PMDD, but rather key considerations and principles for legislative/policy reforms, which would support the practice of PMDD. We discuss organ donation and provide a comparative outlook with the aim of drawing lessons from this practice, and applying them to the regulation of PMDD. Our analysis is both normative and black letter since we consider arguments regarding the necessity of organ and data donation, as well as the law that regulates these practices.

The black letter law says that money damages are the preferred remedy for contract breach under US law. Specific performance is reserved for extraordinary circumstances. Contract theory tells us that default rules generally reflect what a majority of contracting parties would agree to, had they considered the matter. But do contracting parties agree with the law’s preference for money damages over specific performance? In a data set of more than 1000 M&A contracts, we find that in over 80% of transactions, parties choose specific performance as their preferred remedy. Using interviews with senior M&A lawyers we seek to unpack the reasons why parties are contracting around the law’s distaste for specific performance and default rule of money damages.

It is black letter law that violations of section one of the Fourteenth Amendment can only be committed by “the state.” For it is “the state” that the amendment commands not to abridge privileges or immunities of citizens, deprive persons of life, liberty, and property without due process of law, or deny persons equal protection of the law. And this prompts the question, how do we know when the state has acted? One way the state acts is by legislating, by enacting rules of conduct. Lawmaking is a paradigmatically state action. This state also acts by enforcing or implementing the laws that have been enacted, and by adjudicating disputes that arise under those laws. In such cases, the state acts through its agents--police, prosecutors, judges, and, indeed, all other public employees. But what if one of these agents of the state acts, not in pursuance of the state’s laws, but in contravention of those laws? Is this agent still acting as “the state”? Can such an agent violate the Fourteenth Amendment when, at the same time, he is acting contrary to the law of his state? That is the question I mean to raise in this article. I mean to raise it despite the fact that the Supreme Court has answered it--although its more recent answer contradicts an answer it gave previously.

This paper discusses models of law and regulation of Artificial Intelligence (“AI”). The discussion focuses on four models: the black letter model, the emergent model, the ethical model, and the risk regulation model. All four models currently inform, individually or jointly, integrally or partially, consciously or unconsciously, law and regulatory reform towards AI. We describe each model’s strengths and weaknesses, discuss whether technological evolution deserves to be accompanied by existing or new laws, and propose a fifth model based on externalities with a moral twist.

Negative externalities of airport operations, associated mostly with noise, are becoming increasingly onerous to homeowners, as air transport develops. In order to resolve the neighbour conflict, the legislator introduces restricted use areas (RUAs) within which noise levels may be exceeded. In these areas, limitations in the use of land are introduced in order to ensure rational development of land surrounding airports and compensation claims are awarded to landowners. These claims compensate planning restrictions concerning the use of land and costs spent on ensuring sound insulation of buildings. The practical application of provisions on RUAs diverges from their literal content bringing about the compensation of loss without a legal and economic justification and the abandonment of the provisions’ objectives. It is argued that a revision of current practice is required in order to fulfill the legal, social and economic objectives of the regulations in force. Negatywne efekty zewnętrzne działalności lotniska, utożsamiane głównie z hałasem, stają się w miarę rozwoju transportu lotniczego coraz bardziej uciążliwe dla właścicieli nieruchomości mieszkalnych zlokalizowanych w sąsiedztwie lotnisk. W celu rozstrzygnięcia konfliktu sąsiedzkiego ustawodawca wprowadza regulacje dotyczące tworzenia obszarów ograniczonego użytkowania (OOU), na których dopuszcza przekraczanie norm hałasowych. W obszarach tych wprowadza ograniczenia w sposobie korzystania z nieruchomości, kształtując racjonalne zagospodarowanie przestrzeni wokół lotniska, oraz przyznaje właścicielom nieruchomości roszczenia odszkodowawcze. Mają one rekompensować planistyczne ograniczenia dotyczące nieruchomości w OOU oraz poniesione koszty na zapewnienie izolacyjności akustycznej budynków. Praktyczne stosowanie przepisów dotyczących OOU odbiega od ich brzmienia, powodując kompensację szkód bez uzasadnienia prawnego i ekonomicznego, a także niwecząc cel ustawowej regulacji. Postulowana jest rewizja aktualnej praktyki uwzględniająca prawne, społeczne i ekonomiczne znaczenie obowiązującej regulacji. По мере развития воздушного транспорта негативные внешние эффекты деятельности аэропортов, определяемые главным образом шумом, становятся все более обременительными для владельцев жилой недвижимости, расположенной в непосредственной близости от аэропортов. Для разрешения конфликтов между соседями, законодатель вводит правила, касающиеся создания зон ограниченного использования, на которых допускается превышение норм шума. В этих областях он вводит ограничения на поря#док использования недвижимости, формирует рациональное благоустройство вокруг аэропорта и предоставляет компенсационные иски владельцам собственности. Они должны компенсировать ограничения при планировании недвижимости в зонах ограниченного использования, и затраты, понесенные на обеспечение звукоизоляции зданий. Практическое применение положений о зонах ограниченного использования, отклоняется от их формулировок, вызывая компенсацию убытков без юридического и экономического обоснования, а также разрушая цель законодательного регулирования. Постулируется пересмотр существующей практики с учетом правовой, социальной и экономической важности применимого регулирования.

As contributors of legal fraternity judges, lawyers, academicians, researchers and college students constantly have interaction in prison studies and writing, the prison researchers and writers play a double function of their educational exercising as each creators and customers of copyrighted materials. It means, they've rights and obligations in regards to copyright regulation. The gift article analyzes the copyright troubles worried in studies and examines the methods via way of means of which the educational authors have to protect themselves from the expenses of copyright infringement and plagiarism. Doctrinal legal studies methodology, additionally called "black letter" methodology, makes a speciality of the letter of the regulation instead of the regulation in action. Using this method, a researcher composes a descriptive and distinctive evaluation of prison regulations determined in number one sources (cases, statutes, or regulations)

Purpose The purpose of this study is to critically analyse the concept of unfair dismissal and to assess the extent to which the Employment Rights Act 2008 is affording protection to employees in Mauritius. The purpose of this study is to also demonstrate that as employees form an integral part of their workplace, their employment cannot be terminated without substantive and procedural fairness. The paper will provide some recommendations to cater for loopholes in existing Mauritius employment legislations. Design/Methodology/Approach To critically examine the topic, the black letter approach is adopted to detail legislations and judgments of courts on the subject matter. A comparative analysis with some other jurisdictions’ employment legislations is also carried out to define, explain and examine the concepts of dismissal, substantive causes such as misconduct and procedural fairness. Findings From the methodologies used, it is found that a substantial reason is not sufficient to conclude whether a dismissal is fair. The law of unfair dismissal has introduced some procedural safeguards to protect the employee from being unfairly and unjustifiably dismissed. The procedural requirements act as guidelines to employers and if they are not followed properly, the dismissal will be unfair. Unfair dismissal needs to be accompanied by remedies from employers, and monetary compensation has been found to be the most appropriate remedy. Originality/Value This paper is amongst the first research work conducted in Mauritius that compares the law of unfair dismissal and its implications with the laws of England and South Africa. The study is carried out with a view to provide practical recommendations in this area of employment law to the relevant stakeholders concerned.

Purpose A taxpayer who gets caught under Part VII of the Mauritius Income Tax Act is subjected to a corrective measure only in the form of payment of the amount of tax that would have been due in the absence of the avoidance arrangement, but the consequences set out in the same section do not result in any disincentive to the taxpayer that would ensure the prevention of the occurrence of such type of anti-avoidance practices in the future. This study aims to investigate the effectiveness of the anti-avoidance provisions in the Mauritius legislation as a weapon against impermissible tax avoidance, and the study also intends to critically analyse the remedies available against taxpayers who enter into impermissible tax avoidance transactions. Design/methodology/approach The methodology adopted for this qualitative study consists of a critical analysis and comparative legal review of the relevant legislation, case laws and literature. The anti-avoidance provisions of the Mauritius legislation will be compared with similar provisions of legislations of countries that have rigid preventive rules for anti-avoidance practices, and the selected countries are the UK and Australia because each country has been successful in diminishing the tax avoidances practices further to the imposition of penalties for impermissible tax avoidance. The black letter approach will also be used through which existing legal provisions, judicial doctrines, scholar articles and budget speeches governing anti-avoidance provisions for each country identified will be analysed. Findings Further to an analysis of the substantial differences between Mauritius anti-avoidance legal provisions and those of the UK and Australia, it is found that the backing of corrective actions by penalties act as a disincentive to prohibit impermissible anti-avoidance practices. The study concludes that, where there is abuse of law, the law needs to provide for penalties that must be suffered by the abuser, and hence, the study calls for an amendment in the Mauritius Income Tax Act to strengthen anti-avoidance provisions, by adopting similar provisions of the laws of Australia and the UK. Originality/value At present, there is no Mauritius literature on the researched topic, and this study will be one of the first academic writings on the subject of penalties for impermissible tax avoidance in Mauritius. The study is a new and unique topic in Mauritius, and for that reason, the study will largely rely on foreign sources that deal with penalties for impermissible tax avoidance, and this will include the Australian Taxation Administrative Act 1953, Australian case laws and the UK Finance Act 2016. This study is being carried out with the view to provide insightful recommendations to the stakeholders concerned in Mauritius to enhance the revenue collection avenues and methodologies for the Mauritius revenue authorities.

The article is devoted to the investigation of legal ideas of Henri Lévy-Bruhl, a French lawyer and sociologist of the XX century, who is considered to be one of the founders of contemporary sociology of law, legal ethnography and legal anthropology. The author of the article analyzes the late articles of Henri Lévy-Bruhl. The author of the article examines the notion “juristique”, introduced by the French professor, and investigates its methodological and substantial peculiarities. As a scientific discipline, “juristique” was supposed to be shaped through the integration of sociology of law, history of law and comparative law into a body. The author also pays special attention to H. Lévy-Bruhl’s theoretical views on the question of law and mechanisms of its formation, on subjects of law-making and sources of law. In particular, the author considers Lévy-Bruhl’s views of collective opinion as the only true source of law, customs’ priority over legislation among all forms of law, judicial practice as the modality of a custom. The key role of Durkheim’s sociology in the shaping of Henri Lévy-Bruhl’s legal views is also highlighted. Henri Lévy-Bruhl’s particular ideas are compared with the doctrine of historical school of law. The final part of the article is devoted to formulating a series of theses which reflect the peculiarities of Henri Lévy-Bruhl’s legal views and his role in contemporary legal doctrine.

The reasonable man is the best known, but not the only, legal construct to be born into the nineteenth-century common law. This article introduces the man’s siblings - including those from the areas of trust law, criminal law, contract law, and intellectual property law (both patents and trademarks). The fact that some of these ‘men’ changed the law is not controversial this research further highlights that while several of these came to life in that century, only some had a significant role into the twentieth century. Those that did are tied to the foundations of our society through their role in facilitating innovation and consumer protection. The argument is that it was the constructs’ nature and their capacity to accommodate public policy issues that enabled the vitality of the ‘reasonable person’ (negligence) and the ‘person skilled in the art’ (patents).

This article considers prescription as a customary standard of legal validity which enables judges to identify certain customs as law even though the status of those customs as law cannot be ascribed to a law-making authority. Although claims as to customs having prescribed are often bound up with claims as to the quality (as opposed to the validity) of custom as law, prescribed custom is properly conceived to be a feature of the rule of recognition – a criterion by which a court can identify, and declare, a custom as already existing law as distinct from both custom without the force of law and custom turned into positive law.

The Danish Supreme Court rejects a consistent interpretation of national law. This outcome is not beyond dispute, but is not clearly in violation with the court’s EU law obligations. It also refuses to disapply the incompatible national provision on the basis of the general principle of EU law prohibiting discrimination on grounds of age. Thereby the ECJ’s preliminary ruling in the case is disregarded and the Danish Supreme Court’s reasoning is problematic from the perspective of EU law.

УДК 347.73 The subject. The article is devoted to the study of peculiarity of legal facts in tax law and law enforcement. The purpose. The article is aimed to identify key features of legal facts significant to law enforcement and to assess how knowledge of these features affects the law enforcement. Methodology. The author uses analysis of scientific sources as well as formally legal method and interpretation of legal norms and judicial acts. Results, scope of application. The author distinguishes specific features of legal facts in tax relations, which determine the specifics of their establishment. The presence of public will in the basis of the legal fact cannot be considered as it’s specific legal and tax feature, because any legal fact acquires their value only by will of the state. The author identifies the characteristics of the legal facts important for tax law enforcement: the complexity of the tax legal facts; "a fact-relationship" among the elements of the set of facts; legal facts (sets of facts) in large part are outside the regulation of the tax law; uncertainty of the entity, establishing the legal facts. Tax obligation arises from the existence of the economic relation, as a rule, in sphere of civil turnover. Transaction as a legal fact must be viewed as a legal act in relation to civil law, but transaction will be a legal deed in relation to the tax law. The transaction in relation to tax law can be called indirect legal fact. Transaction as a legal fact often has two aims: the aim of the first level is the entry into civil law relations to obtain material benefits, and the purpose of the second level is the entry into the tax-legal relationship for paying tax. In addition to the complexity of the tax legal facts law enforcement practice is difficult be-cause of large number of defective legal facts in tax relations. Defects of tax legal facts, the reasons for their occurrence and consequences for tax relations are analyzed. Formally, the defective legal facts give rise to legal consequences in tax relations. The various qualifications of tax legal facts by the taxpayer or the tax authority can be de-termined by using different evidence or by different valuation of the same evidence. Conclusions. Attention to peculiarities of tax legal facts is a prerequisite to the effective tax law enforcement in modern conditions.

“CLS” was an acronym with two very different meanings when I was a fledgling law student some thirty-five years ago. For most, it meant “critical legal studies,” a burgeoning new movement of sundry neo-Marxist jurists and philosophers collectively bent on exposing the fallacies and false equalities of modern law. Many of my first-year law professors were the high priests of this CLS movement. They were making serious waves at the time with their denunciation of much that was considered sound and settled in the law. The best CLS professors taught black letter doctrine—and then shredded it with rhetorical and analytical power. That instruction appealed to my native ethic of semper reformanda—always reforming and working to improve our traditions. Other professors simply taught their pet critical topics, sending us students scrambling to the bookstore in search of study guides that would acquaint us with the legal basics. After a year of such CLS instruction, I could not wait to take the upper-level electives that would no doubt unveil the new and better legal system CLS had in mind. Little was on offer. The “crits,” I soon learned, were better at deconstruction than reconstruction of the law. Not surprisingly, this movement has now faded and fractured into sundry special interest groups.

This brief comment on Nick Cheesman’s Opposing the Rule of Law highlights the roles of first, documentary records; second, ethnographic engagements and methodologies; and third, the analytic traction gained by illuminating the concept of rule of law through juxtaposing rule of law with the asymmetrically opposed concept of law and order.

Along with China’s economic downturn, there has been an increase in the size of China’s underground lending market. The mounting risk in connection with this underground lending market triggers tremendous interest and debates over appropriate and effective regulatory responses. Because of its private and non-transparent character, the underground lending market is likely to confound those seeking to find “black letter” law governing its regulatory framework. Instead of relying on its conventional tighten-up strategy—using the muscle of the Criminal Law—China has orchestrated an experiment by allowing local legislation to formalize part of the underground lending market, as well as a judicial approach by recognizing a higher interest rate charged by underground lenders to borrowers. This article tries to understand the underlying rationale of regulatory and judicial movements through both law and society, and law and finance lens.

Translated by Janet HendricksonBehind the gap, behind the half-open door, the mother lies in bed. Her eyes are closed, her hair is undone, she's sleeping in her clothes, like a child collapsed from...

The main purpose Robert Alexy tries to achieve with The argument from Injustice and all the other works he wrote on the same topic is to prove, against legal positivism, that law is a bidimensional concept comprising both a real or institutional dimension and an ideal one. As we know, positivism believes that law is valid for formal or factual reasons that just contingently, this is the inclusive variant, may incorporate moral elements; otherwise Professor Alexy believes that law, the concept of law, is to be defined such that, alongside these fact oriented-properties, moral elements must be included. This paper is intended to analyse the core of Professor Alexy's connection argument between factual and ideal dimensions of the law, in order to support this central conclusion: his theory is only perfectly acceptable as a theory "of and about" democratic and constitutional legal systems, and not if intended as a theory "of and about" the concept of law.

In September 2015 Lord Hodge published an article in the Edinburgh Law Review which concluded that there can be no room for Scots law particularisation in the sphere of commercial law, as it could only increase transaction costs (as to which, see Hodge, “Does Scotland need its own Commercial Law?” (2016) 19(3) Edinburgh Law Review 299). Whilst agreeing with Lord Hodge, in this article Jonathan Hardman proposes a different model for potential reforms of Scots commercial law – refocusing on lowering transaction costs using empirical economic analysis. This model is then applied to various elements of the Scots law of security, before being critiqued for its limitations.

The article covers the issue of specific breaches of international law provisions owed to Ukraine by Russia. The article also examines problems in the application of international law by Russia. In the course of the Russian aggression against Ukraine, the former is carrying out the military occupation of the Crimean peninsula and parts of Donetsk and Luhansk regions and prosecutes Ukrainian citizens (Nadiya Savchenko, Oleh Sentsov, Oleksandr Kolchenko, Hennadii Afanasyev, Yurii Soloshenko and others) in violation of international law. Both Russian executives and doctrine attempt to substantiate the cases against Ukrainian citizens, however, their arguments suffer both legal and factual problems. An illustrative in this regard is Savchenko’s case, which has become important Russian propaganda tool to help reinforce the accusations of the “atrocities committed by the Kyiv junta”. The analyses shows that Savchenko case could have been used to complete different tasks – starting from lifting the sanctions imposed against the Russian Federation and finishing with increasing the number of Russian volunteers in the war against Ukraine. Also, Russia has prosecuted Oleh Sentsov who has been charged with creating a terrorist group and committing two acts of terrorism. One of the most untenable legal arguments of the Russian Federation is a qualification of the aggression as a non-international armed conflict. In this regard, Russian authorities and doctrine insist on Russia’s not being bound or entitled to apply the rules of international armed conflicts laid down in the Geneva Convention relative to the Treatment of Prisoners of War (III) to Savchenko. At the same time, a considerable amount of data speaks for an aggressive war the Armed Forces of the Russian Federation launched against Ukraine in Donetsk and Luhansk regions. The Russian Federation has also grossly violated the norms of international humanitarian law and international human rights law.

Мальцева Мария Дмитриевна – аспирант кафедры теории государства и права, конституционного и административного права, Южно-Уральский государственный университет, г. Челябинск. E-mail: mmd812@mail.ru. Maria Dmitrievna Maltseva – graduate student at the Department of Theory of State and Law, Constitutional and Administrative Law, South Ural State University, Chelyabinsk, Russian Federation. E-mail: mmd812@mail.ru.

As well-known phrase of Hugo Grotius sounds “law is that which does not contradict fairness.” Obviously, one of the eternal questions is whether it is always true. The question of the correlation between existing positive law (“the black letter of the law”) and reality, as well as historical fairness, is of current interest for all legal systems. This question is especially important as regards international law. The latter is to be the primary instrument for the international community, which has set ambitious goals for itself in the UN Charter, among them “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained” (Preamble). Moreover, the principles of justice and international law are designated as the basis for the maintenance of peace and security of mankind (pt. 1, Art. 1). The issue of the correspondence of the “letter of law” and fairness (justice) sharply manifested itself in the problem of Crimea, which arose for lawyers, political scientists, historians more than three years ago. From the collapse of the USSR in 1991 until March 2014, little attention was paid by the international community to the Crimean people but, since its reunification with Russia, the Crimean peninsula has become an object of intense geopolitical interest. And all this time the debate on the legal assessment of the events and actions that have taken place has not abated. This issue of the Russian Law Journal is mainly devoted to the situation regarding Crimea over the past three years.

The article is devoted to the problem of the origin of the earliest ideas about the meaning of positive law in the jurisprudence of Ancient Rome and the ancient Roman legal consciousness and legal culture. The distinction between law and legislation, the role and status of positive law in the legal system, its evaluation from the point of view of compliance with the idea of law – ideas, specific to different types of legal consciousness of a later period originated in the legal doctrine of Ancient Rome. The problem of norms of the Roman law is examined from the point of view of modern ideas about the rule of law; its features in relation to this historical period are distinguished. The authors come to the conclusion that the characteristic of Ancient Rome multiplicity of sources of law led philosophers and lawyers to the allocation of a special concept of law, uniting the entire set of regulations of the normative nature.

This chapter seeks to understand the extent of the influence of Caleb Stower’s The Printer’s Grammar (1808) on the presentation of Thomas Dunham Whitaker’s controversial 1813 folio edition of William Langland’s dream-vision poem, which was written in the fourteenth century. More specifically, it is through an examination of Whitaker’s usage of black letter and red ink and his punctuation style that this chapter demonstrates how Whitaker’s Romantic medievalism and interpretative but practical application of contemporary editorial style both assured the clarity of authorial content, and enabled Langland’s potentially anachronistic poem to be accessible to, and appreciated by, his nineteenth-century audience.

Gordon Tullock has been celebrated as an innovative thinker in many areas of public choice. He was also among the first to analyze the law based on the economic approach, yet, his contributions to Law and Economics have been met with skepticism or even outright ignorance. In this paper, I focus on Tullock’s papers dealing with the common law and argue that they contain important insights that have been ignored in the debate regarding legal origins.

L’articolo analizza il ruolo svolto dal diritto nelle esperienze personali di marginalizzazione nella societa svedese da una prospettiva sociologico-giuridica attraverso la lente dell’intersezionalita. Come molte questioni giuridiche, la discriminazione vive nel mondo della vita di tutti i giorni, nel lavoro e nella societa. Mentre la maggior parte delle scienze sociali sviluppano un ampio repertorio di metodi e approcci metodologici, che toccano un’ampia gamma di questioni, il campo della dottrina giuridica si limita solitamente ad un solo metodo: quello della dogmatica giuridica L’autrice propone un’espansione del metodo giuridico quando si abbia a che fare con l’area della discriminazione, poiche gli atti discriminatori, alla fine, violano non solo i diritti della vittima particolare, ma anche quelli di tutti coloro che si trovano in situazioni simili. Quando una corte considera non discriminatorio uno specifico atto, p.es. un insulto razzista in un particolare contesto, cio puo facilmente indurre l’opinione pubblica a ritenere che gli insulti razzisti in genere non siano discriminatori. Cio innesca il meccanismo per cui le persone che "non sembrano come tutte le altre" - persone di colore, o che indossano copricapi, o che provengono da aree geografiche dalla cattiva stampa – finiscono per essere escluse dalla societa. Per abbattere i muri sorti attorno alle vittime della discriminazione si dovra estendere e affinare il tradizionale metodo dogmatico-giuridico. Sarebbe un buon inizio se le decisioni della Corte del lavoro potessero tenere in conto non soltanto il diritto scritto, il ‘law in books’, e le Corti cercassero di comprendere in che modo le loro sentenze possono essere accolte e quali segnali esse possono inviare alla societa circa il ‘law in action’. This article discusses the role played by the law in personal experiences of marginalization from Swedish society from the perspective of sociology of law through the framework of intersectional. Like many legal issues, discrimination dwells in the world of everyday life, work life, and society. While most of the social sciences deploy a varied array of methods and methodological approaches, across a wide range of problems, the field of legal scholarship usually confines itself to just one method: the so-called legal dogmatic method. The author argues for an expanded methodology of jurisprudence when it comes to the area of anti-discrimination, since acts of discrimination ultimately violate not the rights of their immediate victim, but also the rights of all people who find themselves in similar situations. When a court finds a specific act - say, the use of a racial slur - not discriminatory in a particular context, it can easily lead to a public perception that racial slurs are not discriminatory in general. This creates a mechanism by which people who do not ‘look like everyone else’ - people of colour, people who wear headscarves, people who come from regions that get bad press - come to be excluded from society. To tear down the walls around discrimination victims, we will have to extend and refine the traditional legal dogmatic method. One way to begin might be if the rulings of the Labour Court could take into account more than just ‘black letter law’, the law in books. The Court might seek to understand how their rulings will be received and what signals they will send to society about law in action.

Reviewed book: Russian Business Law: the essentials (E.P. Gubin, A.E. Molotnikov eds, Moscow, STARTUP 2016).