Regeneron and Illumina: a case for (and against) ranges

Insufficiency in patents, especially in emerging and complex technologies, can be a real problem for patent applicants. They are keen to progress to filing for obvious reasons and yet are expected to disclose how the invention works to its fullest extent. Problems arise in cases where a patent claim seeks to reserve a range of some sort. Recent judgments of the English Patents Court and the UK Supreme Court have suggested that this is not a trivial problem in most cases of analysis. The upshot appears to be that a range patent is not to be struck down as insufficient simply because a range exists. Much depends upon the importance of the range to the claim or, in the Illumina case, whether mention or the existence of a range is in any way relevant. An analysis of two recent judgments in the UK concerning sufficiency of disclosure sheds considerable light on the current ambit of legal thinking in this area of patent law.

To the question about the historical genesis of patrimonial law of the bashkirs

The article discusses the issue of the formation and development of patrimonial law of the Bashkirs before the accession of Bashkiria to the Russian state. Guided by the pluralism of approaches to legal thinking, the author made an attempt to reconstruct the historical genesis of the patrimonial law of the Bashkirs, as well as the sources of this law in the Golden Horde and post-Horde periods. Based on the analysis of general historical sources, Bashkir legends and chronicles, as well as the corresponding Horde legal monuments, the following conclusions are substantiated: firstly, starting from about the middle of the XIV century on the territory of Bashkiria, those social and political conditions that determined the content of the customary legal norms of the patrimonial law of the Bashkirs began to take shape; secondly, due to the influence of the political and legal ideology of "chingizism", the Bashkirs form a legal myth that the tribal law has its source in the establishment of Chinggis Khan; thirdly, in the legal system of the Golden Horde and in the post-Horde Chingizid khanates, which largely inherited the legal traditions of the first, there were no external forms of expression of law, with the help of which direct state sanctioning of the customs of the Bashkirs associated with clan land tenure was carried out. At the same time, it seems that, by the nature of the prescriptions, the khan's shert and tarkhan labels could indirectly sanction the patrimonial law of the Bashkirs.

The Term Concept of Right and Unright in Practical and Theoretical Jurisprudence

The article examines some modern trends in the development of domestic legislation, as well as general theoretical legal thinking. One of them is a noticeable spread in the legislative acts of Ukraine of those terms that have an outlet to the problem of legal understanding, for example, they talk about such words as: «right», «justice», «unjust sentence», «unright agreement», «unright use», «unright actions», «unright gain». Such terminology can be directly used in legal regulatory practice, and taking into account the pluralism of legal thinking, known from ancient times to this day, inevitably there is a need for an official explanation, interpretation of one or another of the given terminological concepts. In all the above cases, the following question will inevitably arise: the terms above are synonyms for the adjectives lawful, illegal, and are similar to them? Or, on the contrary, in the examples given above, they are talking about some other – meaningful and different – from legal / illegal – phenomenon? If we are inclined to the first answer, the question arises: for what purpose different terms were used to name the same phenomenon? If we support the second of the possible answers, then it directly leads to the problem of legal thinking. One of the aspects of the general problem of legal thinking is the substantive allocation of the so-called phenomenon of the antipode of the phenomenon of right, – the phenomenon of unright. The urgency of solving this practically significant task is illustrated, in particular, by the fact that, for example, in the current Criminal Code of Ukraine, adjectives unright gain are used almost sixty times! What complex of problems in legal regulation, this situation generates, can be seen by analyzing, for example, the reaction of the Constitutional Court of Ukraine regarding the inconsistency of the Constitution of Ukraine with the provisions of Art. 375 of the Criminal Code of Ukraine. Arguing this decision, the Constitutional Court of Ukraine referred to the fact that, in particular: a) formulation of this article allows possibility of abuse by the bodies of pre-trial investigation, in connection with legal clarity, unambiguity in content of the norm is lost when they are applied; b) the situation under discussion creates the possibility of an official assessment of the court decision by non-judicial bodies, which contradicts the principle of the distribution of power. It seems remarkable that in response to the aforementioned decision of the Constitutional Court of Ukraine, almost half of those judges who took part in the consideration of this case expressed separate opinions in which they thoroughly criticized the arguments of the Court. Without resorting to a specific analysis of each of these thoughts, we state the pluralistic interpretation of the first part of the complex word «unjust» by different judges of the Constitutional Court of Ukraine. We explain it by the socially-natural heterogeneity, the interpretation of any evaluative legal concepts by various subjects of society in the process of legal regulation.

Dispute about the Nature of Law

The article analyzes the conditions for a dialogue between Western and post-Soviet philosophy and theory of law on the nature of law (in terms of the first), or understanding of law (in terms of the second), which would create an opportunity for the organic inclusion of the “dispute about the nature of law” elements in the context of the discussion and solving issues relevant to the post-Soviet philosophy of law, including the shift of emphasis from the theoretical to the practical aspect of the problem of the nature of law. The research begins with a general description of the peculiarities of the “discourse of legal thinking (understanding of law)” inherent in post-Soviet jurisprudence and the identification of ontological and analytical criteria for classifying the types of understanding of law (natural law, positivist, sociological) as the basis for further convergence of post-Soviet and Western experience of understanding of law. Further, the meaning of the concept of validity of law in its social, moral and legal varieties for understanding the nature of law in general and the corresponding types of such understanding are revealed. In the final part, attention is drawn to the practical aspects of the study of the nature of law, carried out in the context of “extraordinary cases” existing on the verge of law and un-law. Further analysis reveals the methodological possibilities of comprehending the concept of law through the correlation with the counter-concept of “un-law” using examples: post-Soviet discussions about the relationship between law and statute, legal and non-legal law; Hegel’s concept of right and non-right; contemporary non-positivist approach by Robert Alexy in accordance with the criterion of the “limiting border” of law according to the Radbruch formula. The conclusions summarize the provisions on the general and distinctive features of the “discourse of the nature of law” and “discourse of understanding of law”, determine the prospects for their rapprochement.

The Problem of Natural Law in the Works of Ivan Ilyin and Leo Strauss

This article provides a comparative analysis of two interpretations and methodological strategies of substantiating the idea of natural law, which belong to Ivan Ilyin and Leo Strauss. The comparative method was used in the research process, while the problem-topic method was applied to the analysis and presentation of the material. The two interpretations of natural law were compared on the basis of the following criteria: 1) interpretation of the principle of historicism and assessment of its prospects for substantiating natural legal thinking; 2) correlation between natural and positive law; 3) interpretation of the essence of philosophy, relationship between the general understanding of the nature of philosophical knowledge and the principles of natural legal thinking; 4) correlation between law and religion. Both Ilyin and Strauss saw in natural law an invariant basis of positive law. Criticism of the principle of historicism (understood as relativism) is a conceptual prerequisite for the reactualization of the idea of natural law in the works of both philosophers. However, Ilyin sees in historicism an annoying prejudice and a product of a “sick” legal consciousness, while Strauss views historicism as the main challenge facing the classical philosophical tradition. The differences in the substantiation of natural law by the two philosophers stem from the differences in their understanding of the nature of philosophical knowledge. For Ilyin, philosophy begins with studying the meaning of axioms, while for Strauss, philosophy as “knowledge of ignorance” begins with a critical formulation and comprehension of fundamental questions. The most significant differences in the philosophical and legal concepts of Ilyin and Strauss are associated with the problem of the relationship between law and religion. According to Strauss, the universal rationaltheoretical substantiation of the idea of natural law cannot refer to religious experience and be based on revelation. According to Ilyin, the reference of the philosophy of law to religious experience is necessary, because normal legal consciousness has an essentially religious nature.

Promoting the rule of rationality over positive law and legal thinking

The paper makes the following claims. First, the most important problem for contemporary legal philosophy is contrasting the morally disgusting state of the world. Second, qua jurisprudents, the problem must be dealt with indirectly. Third, the indirect way of dealing with the problem requires pursuing the goal of promoting the rule of reason, the dominance of rationality, over law and legal thinking. Fourth, such an overall goal is to be pursued by breaking it down into five more specific goals: namely, promoting the epistemic, methodological, conceptual, instrumental, and substantive rationality of law and/or legal thinking. Fifth, pretentious and idle ways of doing jurisprudence must be put aside.

Anthropological approach to the concept of legal values: classic, non-classical and post-non-classical

The article is devoted to the study of the concept of legal values, their classification. Analysis of legal literature led to the conclusion that legal values are considered only in line with legal positivism, which have a faade in relation to the subject of law. According to the author, anthropological approaches - classical, non-classical and post-non-classical - can become a milestone in a conceptually different understanding of the values of law. In this regard, the purpose of the paper is to conduct a study of the values of law in line with anthropological research programs. To achieve the goal, the following tasks were set: 1) to describe the classical (neoclassical), non-classical and post-non-classical anthropological programs; 2) to formulate the concept of legal values and truth within the framework of three paradigms of legal thinking; 3) to classify and rank the values of law. As a result of the study, the following conclusions were made: The legal value in the classical (neoclassical) anthropological paradigm lies in the safe-guarding and protection of inviolability of the biopsychophysiological integrity of the organism, which identifies an individual as a physical person. Therefore, the law has an objectified and alienated from the individual subject character. The value of law in non-classical anthropological discourse is imperative-attributive experiences (legal psyche) or intentional acts of consciousness that constitute legal reality, with which a person is identified - a legal personality. The post-non-classical model of cognition is focused on the discovery of the true essence of a person through identification with a legal being (or pure consciousness), which is an absolute value and creator of transpersonal and extra-social legal reality.

Philosophy of law

This textbook is devoted to the consideration of the philosophy of law as a scientific and academic discipline. The author, presenting the material of the textbook on the generalization of the concepts of philosophy of law, cultivated by modern research, offers its own approach to considering a number of its problems, which are debatable and have not yet found a generally accepted solution. Among them are problems the subject of philosophy of law and its methodology, the essence of law and modern approaches to legal thinking, the relationship between law, power and justice. This explains the conceptual differences in the presentation of the history of philosophy of law, presented in the tutorial. Recommended for students, undergraduates, graduate students, teachers and research associates of legal and philosophical faculties of universities.

Can Predictive Justice Improve the Predictability and Consistency of Judicial Decision-Making?

There has recently been talk of algorithms that predict decisions in legal cases being used by the judiciary to improve the predictability and consistency of judicial decision making. We argue that their use may minimise the error rate of decisions in the long run, but that this would require not only major technical advances but also major changes in legal thinking about what is the most important objective of judicial decision-making: optimising individual justice in a particular case or reducing errors in the long run. We further argue that if algorithmic decision predictors give any useful information in individual cases to judges at all, this is not in its predictions but in its explanations.

Law and Order in Postcolonial Racial Cities

This work analyzes two class actions contesting the racial violence of Rio de Janeiro’s state police during operations in majority black neighborhoods, assessing both the narratives and social mobilization denouncing black genocide and the role of legal thinking in deviating or denying racism. The analysis of this case reveals that, on the one hand, spatial, racial and juridical structures - established by the racial colonial project and perpetuating in the legacy of racial slavery - create the conditions for genocidal acts to be produced as a long-lasting process. While on the other hand, legal knowledge sustains the “intent to destroy, in whole or in part” a specific group, which is fundamental to the crime of genocide. Considering that black genocide results from institutional racism, the conditions allowing it to happen are not just associated with intent. Black genocide is implemented through the normal functioning of justice institutions, as we discuss in the case study. In this context, black death is central to sustaining power relations, normalized by the use of racial stereotypes for the racialization of space, creating zones of dehumanization as criminality. Denialist discourses use this condition in perpetuity, to normalize genocide and extra-judicial killings. Nonetheless, the concept of institutional racism enables us to understand that genocide can also result from day-to-day decisions taken by politicians, legal professionals, and institutions.