Survival of the Fittest Protection of Indigenous Knowledge

This chapter reflects on numerous protections that are available for indigenous knowledge from those who misappropriate it for personal aggrandizement without regard of the holders of the knowledge. The chapter is underpinned on the Afrocentricity and Sankofa theories. A socio-legal methodology was adopted to ground the work to enable students studying indigenous knowledge systems to have a foundation and be able to follow the interdisciplinarity in the writing. As such, a doctrinal approach and qualitative design were engaged to buttress the philosophical reasoning and capture the rich and unrecorded knowledge of inorganic intellectuals. The chapter's standpoint is that the protection of indigenous knowledge requires African-tailored legislation that resonates with indigenous communities' beliefs and are pragmatic yet innovative to bring benefit sharing. In pursuing this, a normative legal framework that could be utilised in the protection of indigenous knowledge is explored.

PEMIKIRAN ABDULLAH SAEED TENTANG RIBA DAN IMPLIKASINYA TERHADAP HUKUM BUNGA BANK

When the discussion about the prohibition of bank interest law was crowded, Abdullah Saeed came up with an alternative thought. For Saeed, bank interest does not fall into the category of riba as many voices say today. Therefore, this study aims to answer several questions: how is the concept of riba in Saeed's thinking; how is that thought correlated with the law of bank interest; and what is the legal methodology that Saeed used to produce his opinion. To answer this question, this study uses a literature source in the form of Abdullah Saeed's writings and is supported by other relevant sources. Analysis and presentation of data is a descriptive-analytic. This study finds that according to Saeed, the interest system applied by modern banking is completely different from the riba system at the time of the Prophet Muhammad that actually has its roots in pre-Islamic times. In expressing this opinion, Saeed uses a historical approach to the texts that talk about riba, then uses the theory of wisdom which in some respects is similar to the theory of qiyas in the terminology of conventional Islamic law.

The problems of interpreting GATT Article XXI(b)(iii) in Russia – Traffic in Transit

Purpose This paper aims to further study the panel report in Russia – Traffic in Transit regarding the interpretation and application of 1994 general agreements on tariffs and trade (GATT) Article XXI(b). It analyses the threshold applied by the panel in applying Article XXI(b)(iii) and further discusses the potential problem that may arise in the future dispute. This study also investigates the notion of emergency and security interest and its development in international law. Design/methodology/approach This normative research uses a qualitative legal methodology. This study conducts desk analysis of primary legal materials and existing literature to assess the concept of security interest within the World Trade Organization (WTO) framework. Findings This paper finds that the panel in Russia – Traffic in Transit applied subjective and objective test in reviewing Russia’s invocation of GATT Article XXI(b)(iii). Despite the adjectival self-judging clause and the political tension of the dispute, the panel is capable to review its application. This study further finds that the term security interest and emergency in international relations still leaves the possibility of open interpretation. Research limitations/implications Because of the normative research approach, the research results lack empirical data and implications. Therefore, future research is encouraged to inquire on the empirical research. Originality/value This paper fulfils the need to study and explore security exception clause within the WTO framework as a normative rule of law and in the wider conceptual notion of security and emergency in international law.

The problem of anti-psychologism in Hans Kelsen’s “Pure Theory of Law”

This article examines the nature and specificity of the criticism of psychologism as a theoretical-methodological orientation towards studying law and its interpretation, which in particular was associated with such version of interpretation of law as the “Pure Theory of Law” of Hans Kelsen. More in-depth representations of modern legal theory in understanding the patterns of law and its essential aspects requires the due coverage of the history of psychological and anti-psychological approaches towards law that form of the major oppositions in the development of legal though at the turn of the XIX – XX centuries. Multiple aspects of H. Kelsen's legal views are yet to be examined, including the correlation of his doctrine with other doctrines, as well as the nature of substantiation of law and the analysis of legal phenomena. The scientific novelty of lies in the fact that based on the analysis of legal views of the Austrian jurist Hans Kelsen wirh his pronounced claim to exclude all “non-legal’ elements, it is revealed that a significant part of conceptual-logical apparatus of Kelsen’s teaching and the approaches towards substantiation of law were psychological in nature. Unlike the objective-idealistic positions of H. Kelsen, legal Neo-Kantianism was methodologically more accurate in elucidation of interrelation between the actual legal phenomenon and the role of gnoseological methods of perception and comprehension of law. The assessment of H. Kelsen’s doctrine as the theory of law is subject to criticism in this article, since in reality it is limited to the issues of legal methodology.

Localism in perceiving the problem of adat people in forest area: A critical thinking

Law as a branch of science does not escape development. This is in line with developments in other branches of science, especially social science. Developments in legal science include many things such as themes, writing, methods, to methodologies. One of the developments of legal science that has attracted quite a lot of interest from legal philosophy thinkers is the development of historical methodologies. There have been many debates by legal experts regarding historical methodology. In this paper, we will present the development of the legal-historical methodology, we can find three major schools of historical-legal methodology, namely narratives, structuralism, and structures. The legal-historical approach can be functioned through the historical method through several approaches to legal research objects. Thus, this approach tries to restore the role of humans or actors (human agency) in legal changes that will determine the path of human life in the future. Legal pluralism through historical studies before making local legal products will be an illustration of how interesting the role of humans as a legal-historical study is.

Hate Crime, Discrimination, Violence, Criminal La.

There is no doubt that freedom of expression and thought is guaranteed to everyone, and no person has the right to slander, derogate or abuse others in any form of expression, whether verbally, in writing, drawing, or with reference ... etc, because of his disagreement with him in opinion. The mere disagreement of opinion is a natural thing, and it is the way of advancement in life and treatment, except that what currently prevails is the opposite, as the difference of opinion is the beginning of public disagreements and boycott. Violence, as it falls within the framework of hatred and incitement to it, which makes it fall within the circle of criminalization and punishment legally. In view of the legal controversy raised by hate speech and incitement to it, the importance of this study appears in that it is based on clarifying the relationship between it and the freedom of expression of opinion and how to separate between legitimate expression that is prohibited or restricted, and expression that results in violations of other basic rights and harms the freedoms of humanity without discrimination. Thus, the problem of this study is determined in knowing what is legitimate and what is unlawful in the context of expressing an opinion and the means used to express it, and what is the legal methodology and legislative policy that countries follow in facing this type of crime in light of the escalating societal controversy about what is considered incitement to Violence, hostility or hatred, racial discrimination, and the occurrence of many incidents based on speeches of incitement and hat Accordingly, we wanted to evaluate this study as follows: First: The general concept of freedom of expression and the exceptions contained therein. Second: The legislative policy of states to confront and limit expressions of hatred.

VI. The Brazilian civil code of 1916: principles, method and institutional conditions of private law modernization

The article analyzes the elaboration of the Brazilian civil code of 1916 as part of a broader political project of Republican modernization, focusing on the relation between private law, politics and economics in Brazil at the turn of the 20th century. The basic argument is that the consolidation of the Republican regime during the presidency of Campos Sales (1898–1902) provided the institutional conditions that paved the way for the codification of civil law. From the political perspective, parliamentary debates indicate that the civil code draft quickly turned into an instrument of political bargain and opposition to the president’s authority. From the legal point of view, the paper argues that, contrary to the prevailing view in Brazilian private law scholarship, the code represented a real attempt to break with the old order and create the conditions for a private law system based on equal juridical freedom. Finally, the paper explores the connections between the reform of legal methodology and legislative modernization, pointing both at the normative principles guiding the civil code elaboration and at the opposition it was faced with in Brazilian society.

The Aporia of EU Citizenship

EU citizenship finds itself in but a deadlock. Certainly no longer being just a symbol of European integration but still far away from a meaningful status of its holders, Union citizenship fails to find its place in the legal landscape of the EU. Having sketched out the current state of EU citizenship and some of its outstanding problems, this article suggests to analyse Union citizenship anew and free from the constraints of legal methodology. In order to do that, this piece employs the works of Jacques Derrida and, on the background of his views on Europe, deconstructs EU citizenship unravelling its aporia.

Dispositivity in the criminal and environmental law: some theoretical and applied aspects

Criminal law is traditionally viewed as a branch of public law. Until recently, the category of “dispositivity” in the Russian theory of criminal law had not even been considered. However, it is argued that the development and reflection of dispositivity fundamentals in the criminal law shows the level of protection of law-abiding citizens and also serves as an indicator of activity of legal subjects in the field of criminal justice. The article attempts to define the concept of dispositivity in Criminal law, and explore its theoretical and applied aspects through conceptual (political and legal) and instrumental approaches. As a part of the conceptual (political and legal) approach dispositivity is treated as the common grounds of the field of legal regulation. As a part of the instrumental approach dispositivity is regarded as a method of legal regulation, property legal norms, as well as the mode of legal regulation. From the point of legal methodology we can speak of dispositivity in the Russian criminal law, since there are no «pure» or distinct fields of private or public law. Simultaneously with the imperative method of legal regulation, there may be the legal grounds for the dispositive legal regulation, and vice versa. The article also examines such manifestations of dispositivity in the Russian criminal law as self-defense, detention of the offender, a reasonable risk, reconciliation, prosecution at the request of a commercial organization or with its consent, the consent of a person to commit action which can present a risk of HIV infection, the consent of the victim to enter into marriage with the defendant.