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Theoretical and Applied Law

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No 3 (2024)
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FROM THE EDITOR-IN-CHIEF

ARTICLES

9-22 204
Abstract

The study aims to examine the problem of implementing Badung Regency Regional Regulation Number 26 of 2013 in the use of vertical space regarding the height of multi-storey buildings and the supervision of violations of vertical space utilization in Badung Regency. This study employs an empirical legal research method, which involves observation and interviews as data collection techniques. The results indicate that there is a discrepancy between the desired and actual outcomes of the implementation of vertical space utilization related to multi-storey buildings in Badung Regency. A discrepancy was identified between the intended and actual implementation of vertical space utilization related to multi-story buildings in Badung Regency. The violation of the building height provisions, which have been set at a maximum of 15 meters, renders ineffective the provisions of Badung Regency Regional Regulation Number 26 of 2013. The absence of community participation in monitoring the use of vertical space can result in a lack of attention to violations that occur directly in the field. This has implications for the importance of integrating public participation in legislation to address issues related to vertical space utilization and maintain harmony between development and environmental conservation. The study contributes to the discourse on sustainable urban development and the integration of legal principles with cultural values, offering practical benefits for legal practice and regulatory improvement in spatial planning.

23-35 247
Abstract

In this paper, the authors attempt to examine the impact postmodernism has had on the theory of law. Since the implementation of postmodern methodology in legal science in its most serious form occurred in the United States, the authors place the main emphasis in their analysis on American legal thought. The authors consider how the main provisions of postmodernism are reflected in legal theory: the textuality of the world; freedom from grand narratives; death of the subject, etc. The authors emphasize that if from the point of view of ontology, postmodernism was not able to give law some new theory that explains its essence; in terms of axiology and epistemology, it nevertheless enriched jurisprudence. It seems that postmodernism received its most striking development within the framework of the school of critical legal studies and was reflected in the works of D. Kennedy and P. Schlag.

36-45 281
Abstract

The article examines the problem of the fixation of analytical jurisprudence on conceptual analysis of legal concepts. The first part of the work is devoted to the consideration of the latter as a heterogeneous method of analytical jurisprudence, in contrast to its limited understanding that prevails in current jurisprudence. The second and third parts trace the genesis of analytical jurisprudence from analytic philosophy. Based on the thoughts of Dagfinn Follesdal, an analogy is drawn between the paths of analytical jurisprudence and analytic philosophy. It is concluded that analytical jurisprudence in the doctrinal sense will go through a path of separation from conceptual analysis, which analytic philosophy has already passed. The fourth part of the article examines the foundations of analytical jurisprudence in the form of the legal theory of Herbert Hart, who, being the founder of analytical jurisprudence, defined the entire subsequent analytic tradition in jurisprudence in such a way that its focus is not limited only to issues of legal language. Based on this, it is concluded that initially in analytical jurisprudence it was not strict conceptual analysis that prevailed, but conceptual logic, which made it possible to develop legal teaching in a practical way and only later gave rise to linguistic studies of law. The thesis is brought up for discussion that analytical jurisprudence, like analytic philosophy in general, does without strict conceptual analysis for its constitution. It is enough for her to have more general ideas about proving and justifying her theses. In addition, in the fifth part of the article, parallels are drawn between conceptual analysis as a method of analytic philosophy and the concept of the hermeneutic circle, traditionally inherent in continental philosophy. The main thesis of the article submitted for discussion is the assertion that the methodological fixation of analytical jurisprudence, which has become established as a relevant research tradition, must be overcome, since it is justified exclusively discursively, and not on the basis of sound reflection.

46-53 160
Abstract

The article examines classical natural law as the ideological foundation of the legal tradition in the Western world. As the author demonstrates, natural law was inherently linked to the legal traditions of antiquity and the Middle Ages, shaping both the dominant historical type of legal thinking and the models of legal regulation implemented within the respective traditions for the behavior of participants in legal communication. The preeminent position of natural law was determined by historical context as well as the specificities of the legal orders corresponding to that historical type. According to the author, the doctrine of classical natural law has become the ideological bedrock of the Western legal tradition in all its diverse aspects and manifestations. It can, therefore, be asserted that the Western legal tradition, viewed from this perspective, constitutes a collection of legal ideas characteristic of Western civilization and intended for the modernization of non-Western states.

54-62 217
Abstract

The article analyzes a variety of normative legal acts, which is relatively new for the Russian legal system — administrative regulations. Signs that distinguish administrative regulations from other departmental regulatory legal acts are identified. The main stages of the inclusion of administrative regulations in the Russian legal reality in the course of the ongoing administrative reform are analyzed and considered. The author’s definition of administrative regulations is given, revealing their most essential characteristics. The types of administrative regulations are considered, their general and special features are revealed. The study made it possible to identify, formulate and characterize the main problems associated with the application of administrative regulations and suggest possible ways to solve them.

63-74 242
Abstract

The article examines the peculiarities of separation and differentiation of two areas included in the sphere of biometric personal data processing in Russia: compulsory and voluntary biometrics. The definitions of the concepts of these areas are formulated, the peculiarities of their content are considered. Justification of their differentiation, main criteria and specifics of such differentiation are given. The problems of voluntary biometrics in the context of exceptional cases of compulsory processing of biometric personal data are highlighted. The balance of private and public interests in each of the areas is studied. The conclusions are drawn about the formation of the scope of voluntary biometrics and its differentiation from compulsory biometrics due to the legislative novelties at the end of 2022; the essential difference between compulsory biometrics and voluntary biometrics; the existence of special criteria for differentiating between voluntary and compulsory biometrics; the need to focus lawmaking efforts on voluntary biometrics due to its dynamism and closeness to everyday life.

75-86 195
Abstract

The absence of a unified material legal regulation of the transfer of property rights is determined by the presence of fundamental contradictions in the approaches of various legal systems to this issue. The lex rei sitae connecting factor is not the optimal way to regulate the transfer of ownership of movable property in cross-border transactions. Conflict mobile is one of the cases, when determining the statute of a movable property by the law of its location is difficult and leads to an unfair result. The right of the parties to a contract in cross-border relations to freely choose the legal order regulating transfer of ownership is one of the ways to overcome the disadvantages of conflict-of-laws regulation of the transfer of ownership. However, such a manifestation of the party autonomy is not allowed in all legal systems and is not a generally accepted approach. The purpose of the study is to reveal the difficulties of the legal order in case of implementation of the party autonomy in the sphere of transfer of property rights, as well as to identify ways to overcome them. The party autonomy is practically analyzed on the example of the legal systems of Russia and CIS, Switzerland, the Netherlands, China. The choice of the legal order applicable to the transfer of ownership is not an extension of the scope of the contract statute, but represents party autonomy in relation to the real statute. Consequently, party autonomy interferes with the specific issues of property law. The analysis shows us that the party autonomy with certain restrictions is permissible for regulating transfer of ownership and serves an instrument for overcoming difficulties caused by the use of lex rei sitae connecting factor in a number of cases. However, allowing parties to an international transaction to choose the legal order applicable to the transfer of ownership raises the question of the effect of the choice against third parties. The article outlines ways to solve this problem.

87-95 162
Abstract

In relation to the sphere of legal protection the author considers two legal phenomena: “digital self-protection” and “digital protection of rights”. Relaying on examples of actions taken by parents in order to protect the children’s rights on Internet, the author comes to the conclusion that the digital methods of protecting the right that exist today in practice can be considered by modern jurisprudence as alternative ways to protect the right or form a new legal institution of “digital self-protection”.

96-106 219
Abstract

Artificial intelligence is actively taking over sphere after sphere and particular successes and achievements can be seen in the medical sector and medical technology. However, the introduction of AI raises a number of practical and ethical issues. One of the main ones is the issue of handling personal data, as access to a large number of patients’ health data plays a key role in the development and use of AI in medicine. The most convenient solution for their use is to anonymise them beforehand. However, with anonymisation, there is a risk of re-identification and the potential for loss of data informativeness may be lost. In the framework of this article the experience in the sphere of legal regulation of personal health data handling when using artificial intelligence systems in medicine is considered in the example of the USA, EU and Singapore. Each country is endeavoring to strike a balance between the protection of personal data privacy and the advancement of technological innovations. The analysis suggests that the emphasis on artificial intelligence development necessitates specific premises in the domain of personal data protection. Conversely, stringent standards for the protection of personal data could potentially exert a restrictive influence.

107-121 247
Abstract

The subject of the study is doctrinal research and legislative norms that form and consolidate the definition of land management in the period from 1917 to the present. The basis for the study is the low legislative technique of the draft law “On Land Management” being developed today, the lack of re-evaluation of the definition of land management. Since the legal regulation of the institute of land management cannot be effective without a basic concept, it is advisable, using the historical method, to analyze the existing definitions of land management, to determine its stable elements that could be applied when developing a new draft law.

122-132 210
Abstract

Carbon regulation in Russia is at the stage of formation, which requires the development of an integrated approach based on the principles of sustainable development, taking into account international experience. With an understanding of the importance of the problem of climate change for the future of the country and the entire planet, as well as in fulfillment of international obligations, Russia has adopted a number of measures to nationally regulate greenhouse gas emissions reduction, as well as other mechanisms that help slow down global changes.

The purpose of this article is to develop comprehensive legal solutions to optimize the system of regulatory legal regulation of issues of reducing greenhouse gas emissions. The research problem lies in the formation of such mechanisms of state climate regulation, which, on the one hand, will contribute to achieving the goals of reducing greenhouse gas emissions set by Russia, and on the other hand, will correspond to the current foreign policy challenges, the ambiguous geopolitical and difficult economic situation that affect public policy, the business community and the global interaction on climate issues.



ISSN 3034-2813 (Online)