Viktor Savchenko’s Post

𝙒𝙝𝙖𝙩 𝙞𝙨 𝙝𝙚 𝙥𝙤𝙞𝙣𝙩𝙞𝙣𝙜 𝙖𝙩, 𝙮𝙤𝙪 𝙬𝙤𝙣𝙙𝙚𝙧? 📊 You guessed it, it's 𝗲𝘅𝗰𝗶𝘁𝗶𝗻𝗴 𝗲𝗺𝗽𝗶𝗿𝗶𝗰𝗮𝗹 𝗱𝗮𝘁𝗮 on comparative law 📊 Last week, our research team (Holger Spamann, Stefan Vogenauer, Heinrich Nemeczek, Dr. Frederic Jasper Kunstreich, M.Phil. (Oxford), and I) presented a project at the 𝟮𝗻𝗱 𝗛𝗮𝗿𝘃𝗮𝗿𝗱 𝗛𝗮𝗺𝗯𝘂𝗿𝗴 𝗖𝗼𝗻𝗳𝗲𝗿𝗲𝗻𝗰𝗲. We analyzed how 𝟴𝟬 𝗘𝗻𝗴𝗹𝗶𝘀𝗵 𝗮𝗻𝗱 𝗚𝗲𝗿𝗺𝗮𝗻 𝗮𝗽𝗲𝘅 𝗰𝗼𝘂𝗿𝘁 𝗼𝗽𝗶𝗻𝗶𝗼𝗻𝘀 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝟭𝟴𝟴𝟬𝘀 𝗮𝗻𝗱 𝟮𝟬𝟬𝟬𝘀 𝗲𝗻𝗴𝗮𝗴𝗲𝗱 𝘄𝗶𝘁𝗵 𝗮𝘂𝘁𝗵𝗼𝗿𝗶𝘁𝗶𝗲𝘀 (statutes, cases, literature) in contract law cases. Here is what we found: 📊 Even in the 1880s, 𝗱𝗶𝗳𝗳𝗲𝗿𝗲𝗻𝗰𝗲𝘀 𝘄𝗲𝗿𝗲 𝗹𝗲𝘀𝘀 𝗽𝗿𝗼𝗻𝗼𝘂𝗻𝗰𝗲𝗱 than the common trope might claim. 📊 There is 𝗹𝗶𝘁𝘁𝗹𝗲 𝗲𝘃𝗶𝗱𝗲𝗻𝗰𝗲 𝗼𝗳 𝗰𝗼𝗻𝘃𝗲𝗿𝗴𝗲𝗻𝗰𝗲 — gradual differences largely persisted over time. 📊 German opinions from the 2000s 𝗰𝗶𝘁𝗲𝗱 𝗮𝘀 𝗺𝗮𝗻𝘆 𝗰𝗮𝘀𝗲𝘀 as the English opinions did. 📊 However, English opinions 𝗲𝗻𝗴𝗮𝗴𝗲𝗱 𝘄𝗶𝘁𝗵 𝗰𝗮𝘀𝗲𝘀 𝗺𝘂𝗰𝗵 𝗺𝗼𝗿𝗲 𝗰𝗮𝗿𝗲𝗳𝘂𝗹𝗹𝘆 (discussing facts, distinguishing, etc.). 📊 English opinions from the 2000s 𝗳𝗿𝗲𝗾𝘂𝗲𝗻𝘁𝗹𝘆 𝗰𝗶𝘁𝗲 𝘀𝘁𝗮𝘁𝘂𝘁𝗲𝘀, but less so than German ones. 📊 In the 1880s, 𝗯𝗼𝘁𝗵 𝗰𝗼𝘂𝗿𝘁𝘀 𝗿𝗮𝗿𝗲𝗹𝘆 𝗰𝗶𝘁𝗲𝗱 𝗹𝗶𝘁𝗲𝗿𝗮𝘁𝘂𝗿𝗲. 📊 In the 2000s, German opinions 𝗲𝗻𝗴𝗮𝗴𝗲 𝘄𝗶𝘁𝗵 𝗹𝗶𝘁𝗲𝗿𝗮𝘁𝘂𝗿𝗲 𝗺𝘂𝗰𝗵 𝗺𝗼𝗿𝗲 𝗶𝗻𝘁𝗲𝗻𝘀𝗲𝗹𝘆 than English ones. Some findings, such as the frequent use of precedent in Germany and that of statutes in England, 𝗰𝗼𝗻𝗳𝗶𝗿𝗺 our expectations (but disconfirm some crude clichés). Others may be 𝗰𝗼𝘂𝗻𝘁𝗲𝗿-𝗶𝗻𝘁𝘂𝗶𝘁𝗶𝘃𝗲, e.g., the scarcity of references to legal literature in German opinions from the 1880s (an era of ground-breaking scholarly debates, after all). Either way, we think it is valuable to supply the comparative debate with some empirical rather than anecdotal evidence. For an in-depth version of our findings, stay tuned for 𝗼𝘂𝗿 𝗽𝗮𝗽𝗲𝗿 📔

Interpretation is resurrecting in the right way: some locally claimed the legislator was dead after publishing a legal rule when I was being educated in the Law, well in the footsteps of the most famous approaches to this subject matter. Such explanations always seemed to me to be giving too little importance to the role of the language being used. Perhaps due to my own relationship with lingüistics. As a youngster to quench my thirst on the matter I devised a contractual interpretation provision that I would deploy in all the contracts I would work on, as those in-the-know know the two areas share a lot of theory. I would keep reading on the matter permanently to this day. Now there are some doctoral thesis that have tried to couple statutory interpretation and lingüistics, importantly the work of Andrei Marmor at Oxford. Such efforts, years after, are birthing explanations such as the authors', who use Corpus Ligüistics to claim more relevance should be given to the lingüistic meaning of the legal texts, and advance, worryingly to me, that computer generated models are to have sway over the ultimate lingüistic meaning of the Law. I found the paper to be key to the practice of the Law for whether drafting contracts -and thus creating private legal rules- or creating arguments about the meaning of laws -or public legal rules- in the context of litigation and arbitration, understanding the subject matter of interpretation has always been key.

Iustinianus Primus Faculty of Law Annual International Scientific Conference 2024, 'Challenges of Legal Systems' Important Dates: Abstract/Application Submission: 30 September 2024 Announcement of Final program: 15 October 2024 Conference: 8 November 2024 Submission of final papers: 28 February 2025 📩 Apply here! https://lnkd.in/dTgFR4wt #InternationalConference2024 #CallForPapers #Research #Networking #ChallengesOfLegalSystems

📰 Legal nature of freedom of will: fundamental ideas and definition 👤 Viktor Savchenko (University of Oxford , Харьковский национальный университет имени В. Н. Каразина) 🔗 https://lnkd.in/encnvkMW Abstract The study aims to determine the legal nature of freedom of will, its definition and its place in the legal system as an idea, principle and norm. Research methods were chosen to consider the set goal and tasks: general and unique scientific methods of scientific knowledge of legal phenomena. In particular, the following research methods were applied: comparative-legal, formal-logical, systemic-structural, dialectical and others. These methods were used in their interdependence. The methodology contains information on philosophical aspects, methodological foundations of scientific knowledge, study of the structure and main stages of research. The paper examines the combination of two definitions, freedom and will, taking into account the legal specificity. The study proves that freedom in law is the possibility of behaviour not prohibited by law and the absence of coercion, except in cases, provided for by law. Will, in law, is the ability to control one's actions and manifestation from the outside, conscious regulation of one's behaviour, which is not limited to the legally defined possibility of behaviour. It is noted, that freedom has a passive character as the possibility of specific behaviour, and will is the active use of one's rights and opportunities. Will is the active use of freedom. The author emphasizes that although free will has a transcendent basis, it is inherent in law, confirmed by its global manifestation in legal science and practice. It is emphasized, that free will is a multi-layered, complex legal concept with a fundamental meaning. The position on the possibility of understanding freedom of will as a legal idea, an idea-principle, an idea-institute and an idea-norm that are not directly enshrined in normative legal acts, but reflected through the content of other legal institutions, principles and norms based on it, is substantiated. It is proved, that in the broadest sense, freedom of will in law is a legal idea, and the author's definition is proposed #sciencerise_juridical_science #law #legal #research #science

In 2023, Professor Lawrence Solum, who serves as the William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law and the Douglas D. Drysdale Research Professor of Law at the University of Virginia School of Law, "highly recommended" Wake Forest Law Professor Harold Anthony Lloyd's "Recasting Canons of Interpretation and Construction into 'Canonical Queries': Further Canonical Queries of Presented Text" in his Legal Theory blog. Professor's article is a second in a series of two articles on the canons of construction published, or to be published, by the Wake Forest Law Review. https://lnkd.in/eicVJ-cG In 2023, Professor Lloyd also contributed a chapter for a second volume of a book on Law and Magic, edited by Professor Cristine Corcos, to be published by Carolina Academic Press in 2024. Great work, Professor Lloyd!

Evaluating Benjamin Netanyahu’s Controversial Statements: A Call for Legal and Ethical Scrutiny Benjamin Netanyahu, Israel’s former Prime Minister, has been a figure of significant controversy, particularly concerning his statements about the Palestinian people. His rhetoric, often charged and provocative, demands a careful and nuanced analysis, especially in the context of international law and human rights. In one of his speeches, Netanyahu drew upon the Old Testament, stating, “You must remember what Amalek has done to you, says our Holy Bible. And we do remember.” This reference has raised eyebrows, as it’s been construed by some as an implicit endorsement of violence. In the Israeli political landscape, such biblical references are sometimes used by the far right to justify aggressive actions against Palestinians. It’s crucial to understand the historical and political implications of these words, considering the delicate and tense nature of Israeli-Palestinian relations. Furthermore, Netanyahu’s characterisation of Palestinian civilian casualties as “collateral damage” has been met with criticism. This terminology, often used in military contexts, can be perceived as dismissive of the human cost of conflict. It’s essential to evaluate such statements not just for their immediate impact but also for how they contribute to the broader narrative of the Israeli-Palestinian conflict. It’s important to note that accusations such as war crimes and genocide carry significant legal weight and require a rigorous, evidence-based approach. International law, particularly the statutes of the International Criminal Court, outlines specific criteria for such charges. Any claim of this nature demands a thorough investigation, fact-checking, and legal analysis, ensuring that accusations are grounded in solid evidence and adhere to international legal standards. In conclusion, while Netanyahu’s statements are controversial and warrant scrutiny, the leap to legal accusations such as war crimes or genocide should be approached with caution, ensuring adherence to legal principles and factual accuracy. It’s through thoughtful, informed, and responsible discourse that we can contribute to a more ethical and just evaluation of such complex political figures and situations.

Recognition of Russian Judgment. Exclusion of report or statement of purported expert. Natural justice. Russian law and governance. ”Throughout the Russian proceedings, Mr. Pekker was given adequate notice of the claim made against him and was granted the opportunity to defend the claim. Further, he had the opportunity to raise the issue of insufficient notice on appeal to the Moscow City Court. The appellate court made a factual finding that Mr. Pekker was given adequate notice, and Mr. Pekker did not avail himself of the opportunity to further appeal this finding in Russia….In our view, the minimum standards of fairness were met in the Russian process. Further, we see no error by the application judge in excluding the report or statement of Professor Solomon, a purported expert witness on Russian law and governance. We agree with the application judge’s reasons for excluding this evidence. The report was not supported by an affidavit sworn by Professor Solomon and was inadmissible…even if the report was properly before the application judge, it was within the discretion of the application judge to determine the weight to apportion to the purported evidence. In this case, he chose not to assign any weight to the statement as it was not sworn, nor did it affirm that the specific Russian Proceedings, which were the subject of the application, were tainted by fraud…” Agrest v. Pekker 2023 ONCA 616, at paras. 13-15

A new working paper 📚 has just been added to our rich collection: "Knowing EU law: how epistemic and ontological commitments shape different understandings of European law and why it matters" by Prof. Martijn Hesselink. This paper discusses how epistemic and ontological commitments shape different understandings of European law and why it matters. As the paper demonstrates, many key debates on EU law – and some of the fiercest disagreements in European legal scholarship – go back to divergent epistemic and ontological commitments. While these philosophical commitments usually operate in the background, this paper foregrounds them. The hope is that this will contribute to bringing more clarity about the nature of the disagreements in some of the main battlefields in European legal scholarship, as well as on the prospect of reaching an agreement. Beyond theoretical clarity, however, the main reason for the present inquiry is more practical and political. A core aim of the paper is to denaturalise the epistemic and ontological groundings of mainstream approaches to EU law and, thus, to demarginalize approaches more peripheral to the centres of power in EU law making and in EU legal academia. There exists no obvious relationship, to say the least, between the political and academic dominance of certain approaches and their epistemic and ontological credentials. Read the full paper here 👉 https://loom.ly/ey7Bf74

The Rule of Law - "The rule of law is a political or moral principle, not a legal rule. There is no universally accepted definition or explanation of the rule of law, although it has certain core elements." (Nottingham Law School) The principle emerged from the philosophical expansion of the concept of Separation of Powers as presented by the French philosopher Montesquieu. This concept gained in momentum and was further refined by the English constitutional theorist professor A.V. Dicey in the late 1800's. More recently, the principles of Rule of Law expanded form a trifecta to a more elaborate set of rules that were clearly set out by the respected English judge Lord Bingham. Lord Bingham skillfully explained the Rule of Law as a set of 8 sub-rules that are as follows: 1- The law must be accessible and so far as possible intelligible, clear, and predictable. Perhaps certain principles of current Data Privacy or AI regulations may fall short here, but this is a personal assessment. 2- Questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion. In simple terms, this means that officials must exercise their discretion within the confines of moral and philosophical principles. 3- The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation. The way I interpret this sub-rule is through examples of impunity for government officials to the extent that no threat is posed to national security. 4- Law must afford adequate protection of fundamental human rights. Each nation is responsible for enforcing this principle within their jurisdictions. 5- Means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve. In simple terms, this means that all citizens must have access to justice to settle civil disputes that align with the principles of reasonableness and proportionality. 6- Government officials at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred and without exceeding the limits of such powers. 7- Adjudicative procedures provided by the state should be fair. This simply means that court decisions must not favor an entity because of their title, income, or connections. Their should be a just and transparent application of the law. 8- The existing principle of the rule of law requires compliance by the state with its obligations in international law, the law which whether deriving from treaty or international custom and practice governs the conduct of nations. 

Happy to share that my paper on the doctrine of Margin of Appreciation got published in volume 7 of Research Society of International Law (RSIL)’s law review. In this paper, I have discussed the doctrine of the margin of appreciation, its scope and applicability under three regional human rights courts, namely the European court of Human Rights, the Inter-American Court of Human Rights and the African Court on Human and People's Rights. There’s an introduction of the doctrine of the margin of appreciation and how it applies to the regional human rights courts at the beginning. Moving further, a detailed analysis of the margin of appreciation's invocation in the European and Inter-American systems has been provided. While the African Court on Human and People's Rights makes no special reference to the doctrine, I have argued in favour of the adoption of a margin of appreciation by this Court. In my opinion, both the Inter-American and African courts should follow the model of the European court when adopting the margin of appreciation in their jurisprudence to some extent, notwithstanding the suspicions regarding the grant of the margin to States in all three regional systems. Link to the paper: < https://rsillaw.review/>