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The Problem of the State of Exception

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Detalles de la revista
Formato
Revista
eISSN
2029-0454
Publicado por primera vez
05 Feb 2009
Periodo de publicación
2 veces al año
Idiomas
Inglés

Buscar

Volumen 9 (2016): Edición 2 (December 2016)

Detalles de la revista
Formato
Revista
eISSN
2029-0454
Publicado por primera vez
05 Feb 2009
Periodo de publicación
2 veces al año
Idiomas
Inglés

Buscar

9 Artículos
Acceso abierto

A Critical Look at the Subjective and Objective Purposes of Contract in Aharon Barak’s Theory of Interpretation

Publicado en línea: 04 Mar 2017
Páginas: 1 - 22

Resumen

Abstract

Sometimes parties to a contract agree on the wording of the contract, but disagree about its meaning. In such cases, the goal of purposive interpretation is to identify a legal meaning, within the limits of the language actually used, which best achieves the purpose of the contract in question. This paper presents the main features of Justice Aharon Barak’s theory of purposive interpretation of contracts, and examines his notions of subjective and objective purposes. Barak’s theory demands, at some point along the process of interpretation, that the judge determine the actual joint intent of the parties, as it was at the time of their entering into the contract, and in the situation where the parties themselves disagree over it. This requires a posterior inquiry into the true state of mind of other persons. The past intentions of others are regarded as historical-subjective psycho-biological facts. The author questions what goes on behind this subjective rhetoric, starting from the presumption that the inner reality of another person’s will, i.e. their past or present intentions, cannot be learned as a physical reality, but only as a socially constructed fact. Furthermore, the author examines the seemingly unwanted merging of Barak’s subjective purpose of contract with his objective purposes of contract at the lower levels of abstraction.

Palabras clave

  • Interpretation of contracts
  • Aharon Barak
  • purposive interpretation
  • objective purpose
  • subjective purpose
Acceso abierto

European Dilemmas of the Biological versus Social Father: The Case of Estonia

Publicado en línea: 04 Mar 2017
Páginas: 23 - 42

Resumen

Abstract

The current understandings and practices related to biological and social fatherhood raise a crucial legal question about which model of fatherhood determination should be adapted to contemporary society: the model of a biological or social father bearing the rights and obligations related to the child. The general ideologies of being a father and the application of different approaches have been analysed comparatively, also trying to provide the best legal policy to consider when interpreting the rules of parenthood in Estonian Family Law Act and the Estonian legal practice. The paper considers the emerging legal concept of social fatherhood to be an inevitable prerequisite for protection of the interest of the child.

Palabras clave

  • Biological father
  • legal father
  • social father
  • paternity
  • fatherhood
Acceso abierto

Interpretation as a Value (RE)Construction of the Legal Norm

Publicado en línea: 04 Mar 2017
Páginas: 43 - 55

Resumen

Abstract

In the context of a normative concretisation of the statute, the term “statute” is not synonymous with the law that can be repeated in light of a concrete case. In this context, the interpreter is the one who (1) “reconstructs” the possibilities contained in the statute, (2) articulates more precisely the contents of these possibilities, and (3) chooses the combination of possibilities that corresponds most closely to the legally relevant features of the life case (which also must be interpreted). Thus the interpreter’s productivity consists in recognizing a legal provision as referring to a type of conduct − for example, as recognizing that the statutory signs “exceeding the speed limit” refer to, inter alia, a type of behaviour known as driving a car too fast through a town. Moreover, the decision-maker has decided the case just this way, which means it is the decision-maker and not the “statutory text” that has excluded the possibility of any other legal solution (e. g. of driving too fast in a state of emergency). The statute refers to cases that will only occur in the future and are at the present moment, in a more or less defined way, envisaged by the legislator. Irrespective of the extent and intensiveness of the envisaging, the interpretation must remain true to the core meaning of the norm and to the semantic possibilities of the statute text.

Palabras clave

  • Interpretation
  • value (re)construction of legal norm
  • dynamic objective interpretation
  • textualism
  • teleological interpretation
  • legal reasoning
  • legal study
Acceso abierto

Movement of Evidence in the European Union: Challenges for the European Investigation Order

Publicado en línea: 04 Mar 2017
Páginas: 56 - 84

Resumen

Abstract

The issue of international cooperation in criminal matters has interested legal theorists and practitioners for decades. In this area of law there are certain challenges that can only be tackled by using the joint efforts of the States, which is different from the national law of the States. For this reason, certain principles of law are specific for international cooperation, and on the basis of these principles States provide legal assistance requests to each other or else create preconditions to ensure the efficient and unimpeded criminal proceedings. It is true that the principles of mutual legal assistance and recognition, and the influence of their alternation are not identical to all segments of international cooperation, including the development of the evidence law in the European Union.

With regard to the evidence and their admissibility in Member States of the European Union, it should be noted that this issue is still relevant, because the biggest concern of some Member States is the admissibility of evidence, when evidence is collected in one State and the admissibility of them is assessed in the other State. It would seem like a more formalized “concern”, but basically it is a quite significant impulse for searching of new legal instruments in the European Union, which would be able not only ensure the acceptability (admissibility) of evidence that was collected in the foreign State in accordance with the relevant procedural form, and in the court of the State which obtained this evidence, but also the sovereignty of the State, the authenticity of the national law, and the respect for the legal culture and traditions of this State.

The authors discuss the development of the law of evidence, the separate legal segments of this law, and their strengths and weaknesses in the article. Despite the fact that the effective mechanisms of evidence movement among Member States appear in modern European Union criminal justice, the latest legal instruments lack the clarity and certainty of certain procedural legal guarantees in the context of human rights protection.

Palabras clave

  • Criminal proceedings
  • evidence law
  • investigation order
  • admissibility
Acceso abierto

Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

Publicado en línea: 04 Mar 2017
Páginas: 85 - 101

Resumen

Abstract

Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s Purposive Interpretation in Law in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.

Palabras clave

  • Political jurisprudence
  • review of constitutionality
  • judicial self-restraint
  • judicial activism
  • purposive interpretation
  • subjective purpose
  • objective purpose
Acceso abierto

Criminal Policy Challenges under Conditions of Hybrid War: Some Issues and Solutions from Ukraine

Publicado en línea: 04 Mar 2017
Páginas: 102 - 129

Resumen

Abstract

This article studies the specifics of national criminal policy implementation under the influence of extraordinary geopolitical factors on it. Such policy will be reviewed with Ukraine serving as an appropriate example. This country has been recently forced to adjust its own ways of implementation of the state policy against crime based on atypical modern challenges and threats. This refers to the special nature of a hybrid war, which has been actively fought on the territory of Ukraine since 2014. The author examines two key areas of criminal policy (definition of the limits of criminal behavior and establishing criminal law consequences of the committed offenses), implemented under the extraordinary circumstances of hybrid war. Symptomatic features of the hybrid form of foreign aggression are defined in the piece. At the same time, options of criminal law in combating and preventing such aggression are researched.

Special focus is placed on new acts that have been criminalized as well as those that might need further criminalization. Attention is paid to the issues of criminal law protection of national and historical memory, and to the concept of journalism related crimes. The importance of amnesty as an effective tool to resolve conflicts between individual and state is also emphasized in the article.

Palabras clave

  • Ukraine
  • hybrid war
  • criminal policy
  • criminalization
  • collaboration
  • amnesty
Acceso abierto

Conditions and Circumstances which Lead to Application to the Court of Justice of the European Union and Adoption of a Preliminary Ruling

Publicado en línea: 04 Mar 2017
Páginas: 130 - 149

Resumen

Abstract

This article deals with the issues concerning the communication between the national courts of the European Union Member States and the Court of Justice of the European Union via the preliminary ruling procedure. The doctrines of acte clair and acte éclairé are described briefly in the article. The authors explicitly investigate the national court’s right to apply to the Court of Justice of the European Union and the obligation to apply to the Court of Justice of the European Union for a preliminary ruling. The recent tendencies in the jurisprudence of the national courts of the Republic of Lithuania while applying for preliminary rulings are revealed.

Palabras clave

  • Court of Justice of the European Union
  • CJEU
  • preliminary ruling
  • preliminary ruling procedure
  • right to apply to the CJEU
  • obligation to apply to the CJEU
Acceso abierto

Anonymization of Court Decisions: Are Restrictions on the Right to Information in “Accordance with the Law”?

Publicado en línea: 04 Mar 2017
Páginas: 150 - 170

Resumen

Abstract

In Lithuania rules for the anonymization of court decisions were introduced in 2005. These rules require automatic anonymization of all court decisions, which in the opinion of the authors violates the public interest to know and freedom of expression is unjustifiably restricted on behalf of the right to privacy. This issue covers two diametrically opposed human rights: the right to privacy and the right to information. The first question is how the balance between two equivalent rights could be reached. The second question is whether this regulation is in accordance with the law as it is established in the national Constitution and revealed by the Constitutional Court of the Republic of Lithuania and developed by the jurisprudence of the European Court of Human Rights. The authors conclude that the legislator is not empowered to delegate to the Judicial Council issues which are a matter of legal regulation and suggest possible solutions evaluating practice of the Court of Justice of the European Union, the European Court of Human Rights, and selected EU countries.

Palabras clave

  • Lithuania
  • anonymization
  • Judicial Council
  • separation of powers
  • European Court of Human Rights
Acceso abierto

Are Auditors at Fault for the Collapse of Financial Institutions in Lithuania?

Publicado en línea: 04 Mar 2017
Páginas: 171 - 197

Resumen

Abstract

The experience of the global financial crisis revealed that while many financial institutions were allowed to take excessive risks, the auditors failed in their duties to reasonably evaluate those risks as well as to inform the investing public about them. The issues of statutory auditors' liability and their public role are particularly relevant in Lithuania, considering the fact that over just the past few years the third and the fourth largest banks in Lithuania turned out to be insolvent. Analysis of legal actions against auditors of these banks highlighted certain shortcomings in the audit market and auditors' liability regulation, related to the quality and transparency of audit reports, auditors' accountability and independence requirements, and insurance of auditors’ liability.

In the first part of the paper the case analysis of Ernst & Young Baltic’s responsibility for Snoras bankruptcy as well as Deloitte’s responsibility for Ūkio bankas’ insolvency, and discussion of the cases, are presented. The second part of the paper deals with the changes in regulation of the audit market in Lithuania and Europe, and issues left outside the reform.

Palabras clave

  • Bankruptcy of banks
  • liability of auditors
  • regulation of audit market
  • insurance of auditors
9 Artículos
Acceso abierto

A Critical Look at the Subjective and Objective Purposes of Contract in Aharon Barak’s Theory of Interpretation

Publicado en línea: 04 Mar 2017
Páginas: 1 - 22

Resumen

Abstract

Sometimes parties to a contract agree on the wording of the contract, but disagree about its meaning. In such cases, the goal of purposive interpretation is to identify a legal meaning, within the limits of the language actually used, which best achieves the purpose of the contract in question. This paper presents the main features of Justice Aharon Barak’s theory of purposive interpretation of contracts, and examines his notions of subjective and objective purposes. Barak’s theory demands, at some point along the process of interpretation, that the judge determine the actual joint intent of the parties, as it was at the time of their entering into the contract, and in the situation where the parties themselves disagree over it. This requires a posterior inquiry into the true state of mind of other persons. The past intentions of others are regarded as historical-subjective psycho-biological facts. The author questions what goes on behind this subjective rhetoric, starting from the presumption that the inner reality of another person’s will, i.e. their past or present intentions, cannot be learned as a physical reality, but only as a socially constructed fact. Furthermore, the author examines the seemingly unwanted merging of Barak’s subjective purpose of contract with his objective purposes of contract at the lower levels of abstraction.

Palabras clave

  • Interpretation of contracts
  • Aharon Barak
  • purposive interpretation
  • objective purpose
  • subjective purpose
Acceso abierto

European Dilemmas of the Biological versus Social Father: The Case of Estonia

Publicado en línea: 04 Mar 2017
Páginas: 23 - 42

Resumen

Abstract

The current understandings and practices related to biological and social fatherhood raise a crucial legal question about which model of fatherhood determination should be adapted to contemporary society: the model of a biological or social father bearing the rights and obligations related to the child. The general ideologies of being a father and the application of different approaches have been analysed comparatively, also trying to provide the best legal policy to consider when interpreting the rules of parenthood in Estonian Family Law Act and the Estonian legal practice. The paper considers the emerging legal concept of social fatherhood to be an inevitable prerequisite for protection of the interest of the child.

Palabras clave

  • Biological father
  • legal father
  • social father
  • paternity
  • fatherhood
Acceso abierto

Interpretation as a Value (RE)Construction of the Legal Norm

Publicado en línea: 04 Mar 2017
Páginas: 43 - 55

Resumen

Abstract

In the context of a normative concretisation of the statute, the term “statute” is not synonymous with the law that can be repeated in light of a concrete case. In this context, the interpreter is the one who (1) “reconstructs” the possibilities contained in the statute, (2) articulates more precisely the contents of these possibilities, and (3) chooses the combination of possibilities that corresponds most closely to the legally relevant features of the life case (which also must be interpreted). Thus the interpreter’s productivity consists in recognizing a legal provision as referring to a type of conduct − for example, as recognizing that the statutory signs “exceeding the speed limit” refer to, inter alia, a type of behaviour known as driving a car too fast through a town. Moreover, the decision-maker has decided the case just this way, which means it is the decision-maker and not the “statutory text” that has excluded the possibility of any other legal solution (e. g. of driving too fast in a state of emergency). The statute refers to cases that will only occur in the future and are at the present moment, in a more or less defined way, envisaged by the legislator. Irrespective of the extent and intensiveness of the envisaging, the interpretation must remain true to the core meaning of the norm and to the semantic possibilities of the statute text.

Palabras clave

  • Interpretation
  • value (re)construction of legal norm
  • dynamic objective interpretation
  • textualism
  • teleological interpretation
  • legal reasoning
  • legal study
Acceso abierto

Movement of Evidence in the European Union: Challenges for the European Investigation Order

Publicado en línea: 04 Mar 2017
Páginas: 56 - 84

Resumen

Abstract

The issue of international cooperation in criminal matters has interested legal theorists and practitioners for decades. In this area of law there are certain challenges that can only be tackled by using the joint efforts of the States, which is different from the national law of the States. For this reason, certain principles of law are specific for international cooperation, and on the basis of these principles States provide legal assistance requests to each other or else create preconditions to ensure the efficient and unimpeded criminal proceedings. It is true that the principles of mutual legal assistance and recognition, and the influence of their alternation are not identical to all segments of international cooperation, including the development of the evidence law in the European Union.

With regard to the evidence and their admissibility in Member States of the European Union, it should be noted that this issue is still relevant, because the biggest concern of some Member States is the admissibility of evidence, when evidence is collected in one State and the admissibility of them is assessed in the other State. It would seem like a more formalized “concern”, but basically it is a quite significant impulse for searching of new legal instruments in the European Union, which would be able not only ensure the acceptability (admissibility) of evidence that was collected in the foreign State in accordance with the relevant procedural form, and in the court of the State which obtained this evidence, but also the sovereignty of the State, the authenticity of the national law, and the respect for the legal culture and traditions of this State.

The authors discuss the development of the law of evidence, the separate legal segments of this law, and their strengths and weaknesses in the article. Despite the fact that the effective mechanisms of evidence movement among Member States appear in modern European Union criminal justice, the latest legal instruments lack the clarity and certainty of certain procedural legal guarantees in the context of human rights protection.

Palabras clave

  • Criminal proceedings
  • evidence law
  • investigation order
  • admissibility
Acceso abierto

Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity

Publicado en línea: 04 Mar 2017
Páginas: 85 - 101

Resumen

Abstract

Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s Purposive Interpretation in Law in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.

Palabras clave

  • Political jurisprudence
  • review of constitutionality
  • judicial self-restraint
  • judicial activism
  • purposive interpretation
  • subjective purpose
  • objective purpose
Acceso abierto

Criminal Policy Challenges under Conditions of Hybrid War: Some Issues and Solutions from Ukraine

Publicado en línea: 04 Mar 2017
Páginas: 102 - 129

Resumen

Abstract

This article studies the specifics of national criminal policy implementation under the influence of extraordinary geopolitical factors on it. Such policy will be reviewed with Ukraine serving as an appropriate example. This country has been recently forced to adjust its own ways of implementation of the state policy against crime based on atypical modern challenges and threats. This refers to the special nature of a hybrid war, which has been actively fought on the territory of Ukraine since 2014. The author examines two key areas of criminal policy (definition of the limits of criminal behavior and establishing criminal law consequences of the committed offenses), implemented under the extraordinary circumstances of hybrid war. Symptomatic features of the hybrid form of foreign aggression are defined in the piece. At the same time, options of criminal law in combating and preventing such aggression are researched.

Special focus is placed on new acts that have been criminalized as well as those that might need further criminalization. Attention is paid to the issues of criminal law protection of national and historical memory, and to the concept of journalism related crimes. The importance of amnesty as an effective tool to resolve conflicts between individual and state is also emphasized in the article.

Palabras clave

  • Ukraine
  • hybrid war
  • criminal policy
  • criminalization
  • collaboration
  • amnesty
Acceso abierto

Conditions and Circumstances which Lead to Application to the Court of Justice of the European Union and Adoption of a Preliminary Ruling

Publicado en línea: 04 Mar 2017
Páginas: 130 - 149

Resumen

Abstract

This article deals with the issues concerning the communication between the national courts of the European Union Member States and the Court of Justice of the European Union via the preliminary ruling procedure. The doctrines of acte clair and acte éclairé are described briefly in the article. The authors explicitly investigate the national court’s right to apply to the Court of Justice of the European Union and the obligation to apply to the Court of Justice of the European Union for a preliminary ruling. The recent tendencies in the jurisprudence of the national courts of the Republic of Lithuania while applying for preliminary rulings are revealed.

Palabras clave

  • Court of Justice of the European Union
  • CJEU
  • preliminary ruling
  • preliminary ruling procedure
  • right to apply to the CJEU
  • obligation to apply to the CJEU
Acceso abierto

Anonymization of Court Decisions: Are Restrictions on the Right to Information in “Accordance with the Law”?

Publicado en línea: 04 Mar 2017
Páginas: 150 - 170

Resumen

Abstract

In Lithuania rules for the anonymization of court decisions were introduced in 2005. These rules require automatic anonymization of all court decisions, which in the opinion of the authors violates the public interest to know and freedom of expression is unjustifiably restricted on behalf of the right to privacy. This issue covers two diametrically opposed human rights: the right to privacy and the right to information. The first question is how the balance between two equivalent rights could be reached. The second question is whether this regulation is in accordance with the law as it is established in the national Constitution and revealed by the Constitutional Court of the Republic of Lithuania and developed by the jurisprudence of the European Court of Human Rights. The authors conclude that the legislator is not empowered to delegate to the Judicial Council issues which are a matter of legal regulation and suggest possible solutions evaluating practice of the Court of Justice of the European Union, the European Court of Human Rights, and selected EU countries.

Palabras clave

  • Lithuania
  • anonymization
  • Judicial Council
  • separation of powers
  • European Court of Human Rights
Acceso abierto

Are Auditors at Fault for the Collapse of Financial Institutions in Lithuania?

Publicado en línea: 04 Mar 2017
Páginas: 171 - 197

Resumen

Abstract

The experience of the global financial crisis revealed that while many financial institutions were allowed to take excessive risks, the auditors failed in their duties to reasonably evaluate those risks as well as to inform the investing public about them. The issues of statutory auditors' liability and their public role are particularly relevant in Lithuania, considering the fact that over just the past few years the third and the fourth largest banks in Lithuania turned out to be insolvent. Analysis of legal actions against auditors of these banks highlighted certain shortcomings in the audit market and auditors' liability regulation, related to the quality and transparency of audit reports, auditors' accountability and independence requirements, and insurance of auditors’ liability.

In the first part of the paper the case analysis of Ernst & Young Baltic’s responsibility for Snoras bankruptcy as well as Deloitte’s responsibility for Ūkio bankas’ insolvency, and discussion of the cases, are presented. The second part of the paper deals with the changes in regulation of the audit market in Lithuania and Europe, and issues left outside the reform.

Palabras clave

  • Bankruptcy of banks
  • liability of auditors
  • regulation of audit market
  • insurance of auditors

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