CEENJ (Central and Eastern European Network of Jurisprudence) - OUR WORK IN PROGRESS
Convenors: Ivana Tucak (University of Osijek, Croatia), Jasminka Hasanbegovic (University of Belgrade, Serbia)

Description: The CEENJ is an informal network of those involved in jurisprudence. It was created in the early 2000s and has held annual conferences at various Central and Eastern European universities. (Participants bear their travel and accommodation costs, and there are no conference fees. The organizer provides the conference room and coffee breaks.)

The annual CEENJ Conferences do not have a specific, general conference topic, and neither does this one. Each participant has 20 minutes to communicate the results of their current, ongoing research on any topic related (in the broadest sense) to the theory or philosophy of law, politics or society, on which they have been working. Thereafter there are 10 minutes for discussion, questions, comments, suggestions, remarks.

Note: The CEENJ as well as the SW 17 is open to all participants, and not just to those from Central and Eastern European countries. So, anybody who cannot find a suitable SW for their topic presentation, or just likes the CEENJ idea, can join. The abstract of 100 – 300 words should be submitted with a brief academic biography under 100 words.

Languages: The CEENJ as well as the SW 17 working languages are English, or German for those who are not German native speakers. The abstracts also may be written in English or German under the same condition. The SW 17 session thus will be held in English and German.

Contacts: ivana.tucak@gmail.com, hasanbegovic.j@gmail.com


INTRODUCTION: On CEENJ – What the CEENJ is and how it works – by Ivana Tucak
1. Marijan Pavčnik (mpavcnik@pf.uni-lj.si)

Questioning the Issue of Interpretation Priority (Law as System of Principles and Rules)
Abstract: The central substantial characteristic of the legal principle is that it is a value measure directing the definition (creation) of legal rules as to their contents, the understanding of the rules, and the manner of their application. In relation to legal rules, the fundamental difference between the two categories is that the principles are operationalized and applied via legal rules. Legal principles live through the rules, which are the reasons for decisions in concrete cases. A new case can be resolved by a new operationalization of legal principles or by analogous application of precedents if in their essential elements the new cases correspond to cases that have already been decided. The task of legal argumentation is to give the ground and the direction where one must go. If such direction is not available, one gets lost in the woods of legal provisions and cases. Marijan Pavčnik is Professor Emeritus at the University of Ljubljana Faculty of Law, Judge of the Slovenian Constitutional Court, Member of the Slovenian Academy of Sciences and Arts, and Member of the European Academy (Academia Europaea). He is the (co)author and (co)editor of numerous books, articles, journals, book series and lexicons – mostly in Slovene, German and English. He was a fellow of the Alexander von Humboldt Foundation at the University of Munich and the University of Bielefeld; received the Zois Award for outstanding achievements in legal sciences; was a member of the Executive Committee of the IVR; and is an international correspondent member of the Hans Kelsen Institute.
2. Gulriz Uygur (gulrizuygur@gmail.com)

Humanity Crisis, Vulnerable Theory and Seeing Injustice
Abstract: We live in crisis times. Pandemic crisis changes many things in the world. Together with this one, we experience many other crises. Namely, we face the diversity of intersecting crises (war, economic, political, etc.). Actually, we live under the climate of the crisis, where the question of what we have become arises. This question brings us to humanity crisis. In this condition, we need new ways of development to overcome this crisis. I claim that one of the ways is to be aware of injustices. But under the climate of crises it is not easy to see injustices. In this point, I claim that the vulnerability theory helps us to capture these injustices. Moving from this theory and Martha Fineman views, I claim that we are all vulnerable in our human nature. In this regard vulnerability is considered as a human condition. That is to say, we are all vulnerable in our human nature. As Jonathan Herrington states, societal resources enable some people to better respond to their vulnerability. In this manner, like Herrington, I reject the idea there are groups of people that should be classified as vulnerable. Rather, I argue that we should all be seen as equally vulnerable. In that point, to be aware of our vulnerability means to be aware of injustices which yield humanity crisis.

Gülriz Uygur is Professor at the Ankara University Law School. She teaches Introduction to Law, Philosophy of Law, Gender and Law, and Law and Ethics. She introduced in Turkey Gender and Law Course, Domestic Violence Clinic, and Human Rights Clinic as part of legal education, as well as the course on Legal Ethics since 2006. She is General Secretary of Turkish Philosophical Society, vice-president and member of the Executive Committee of IVR, and founder and current president of the Turkish National Section of IVR. She is author of numerous articles and books on law and ethics, legal ethics, gender, and violence against women.
3. Isabel Trujillo (trujillo1isabel@gmail.com)

Is State Law True Law?
Abstract: The still dominant State theory of law has introduced doubts on the very legal nature of international law. (With this entry, I refer to the legal phenomenon beyond the State, including supranational law, global law, but also transversal phenomena such as soft law). State law’s features have become normative: a sovereign law-making authority as a source of normativity, a sovereign executive authority that renders effective the sanctions, the compulsory jurisdiction to ascertain the law, the comprehensive character of its matters, the existence of a political community to back the legal system.

Nowadays, there are doubts about many of those characters even in the State domain, but the point is that law has been profoundly transformed in the direction of becoming a tool for justice, cooperation beyond borders, and development. The different elements of a definition of law must be reinterpreted under this light: normativity as a guide for action where voluntary compliance is crucial, a plurality of authorities interacting in law making, different ways of peaceful solution of conflicts, coercion as support for cooperation, diffusive power of best practices in sectorial regulations.

The provocative question in the title does not aim at substituting international law with State law, asserting that international law is the true law, while State law is defective, also because international law is problematic under many of those points of view. Rather, the point is to distinguish what is proper of law from the political dimension typical of the State, in order to emphasizes the inclusive character of law and its ability to protect individuals and communities from any arbitrary power, even democratically legitimate. The argument is that some common and universal goals (partly indicated in the jus cogens) are sufficient elements for providing a direction to the legal coordination.

Isabel Trujillo is Professor of Philosophy of Law at the Department of Law of University of Palermo. Recent publications: The Legal Balance between Liberty and Equality, “Annals. Belgrade Law Review”, 69, 3, 2021, pp. 675-689; Giustizia o umanità? Come e perché le società sviluppate devono rispondere al problema migratorio, “Ragion pratica”, 37, 2, 2021, pp. 519-535; Virtù e professioni giuridiche: i limiti della deontologia, “Ars Interpretandi”, 1, 2022, pp. 87-102; with F. Viola, Which Foundations for Human Rights?, “Latin American Human Rights Studies”, 1, 2021, pp. 1-25.
4. Konstantinos Papageorgiou (albericogentili@gmail.com)

National Revolutions and the Kantian Denial
Abstract: In my presentation I will address some normative questions raised by national revolutions with a special focus on the Greek struggle of independence against the Ottoman Empire. I will highlight some opinions and arguments voiced by contemporary intellectuals and relate them to the broader philosophical context concerning the authority and legitimacy of the state. What are national revolutions, how can we normatively justify them? Does the Kantian denial of a right to revolution apply to them?

Konstantinos Papageorgiou is Professor of Philosophy of Law at the National and Kapodistrian University of Athens. He received his law degree from the University of Athens and his PhD (Dr. jur.) from the Ludwig-Maximilians-Universität in München. His last book “Duties to Refugees” (Athens 2018) received the Greek State Special Award for an “essay on a socially significant issue”. His recent publications include: “Ideals of Freedom in the Greek Revolution and the Political Discourse of Modernity”, in P.M.Kitromilides, ed., “The Greek Revolution in the Age of Revolutions”, London/New York 2021; “Living with Others in Pandemics”, “Netherlands Journal of Legal Philosophy”; and “The Limits of Moral Equality and What Lies beyond”, in J.Hasanbegović (ed.), “On Equality and Liberty” (2021). He is currently completing a book “Equality, Freedom and Friendship”.
5. Tanasije Marinković (tanasije.z.marinkovic@gmail.com)

On Burkahs and Burkinis - Between Paternalistic Feminism and Repressive Tolerance
Abstract: European Court of Human Rights has regularly held that freedom of religion is one of the most vital elements that go to make up the identity of believers and their conception of life and that it entails freedom to hold religious beliefs and to practice religion. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one’s religion in community with others (Kokkinakis v. Greece).

The importance of religious freedom, especially in its communitarian dimension, has also become a political argument advanced by the supporters of multiculturalism, committed to strengthening of position of a cultural or religious minority within the larger society. This political action, which is in itself perfectly legitimate, has been accompanied by the strengthening of power of cultural and religious leaders over dissidents in their groups. And women are often those who bear the brunt of this (Anne Phillips). In fact, multiculturalists systematically hold that the adherence to the religious traditions of a particular culture takes precedence over universalist principles of equality (Frances Raday). Understandably, this position has been at the heart of the on-going debate of the relationship between feminism and multiculturalism.

What the feminists have revealed in this debate is that many of the religious practices support the patriarchal gender relations, specifically subjection of woman to male domination within the family. One of those religious practices with respect to which there is a reasonable disagreement across the globe is the dress code for Muslim women in public spaces. Four types of female coverings have been the object of intensive legal debate for the past three decades: hijab (headscarf tied under the chin), burkah (a full-body covering including a mesh over the face), niqab (a full-face veil leaving an opening only for the eyes) and burkini (full body swim suit). The clash between cultural-religious and gender equality arguments has occupied not only the political scene but has also had administrative, judicial, legislative and even constitutional repercussions in secular countries in which Muslim communities demand from their women and girl children to observe the dress code. For instance, in Switzerland, as recently as in March 2021, the Constitution was amended to include the ban on the full-face concealment in public space.

Hence, the dilemma is how the constitutional norms should, as a matter of principle, deal with clashes between cultural-religious and gender equality arguments. The purpose of this paper is to bring to bear the relevant constitutional principles related to the rights of individual and group, and to attempt to arrange these in the appropriate hierarchy in order to generate just and viable solutions.

Tanasije Marinković is Professor of Constitutional Law at the University of Belgrade Faculty of Law. He received his degrees from the University of Belgrade (LLB and PhD) and University of Paris 1 (LL.M). He also studied, researched or taught at the University of Oxford, University of Fribourg, Central European University, and University of Bordeaux. He has published in the fields of constitutional law, human rights law and political theory. His most recent books include “Treatise on the Right to Free Elections” (in Serbian, Dosije 2019) and “Serbia” (a volume within “International Encyclopedia of Constitutional Law”, Wolters Kluwer 2019).
6. Tomas Gabris (gabris.tomas@gmail.com)

Law as an Act – Praxeology of Jurisprudence
Abstract: While the law is traditionally sought for in norms or in facts, the paper presents arguments for the law consisting largely in acts. The emphasis put on the actor and decision-making might on one hand nihilistically question the existence of objective law proper, but on the other hand it allows to focus on the specific procedural or praxeological aspect of jurisprudence as opposed to the theory of law being the final result of acting – an artifact. This idea was pondered upon already by legal phenomenologists in 1920s, among whom we shall present foremost the ideas of Fritz Schreier in this respect. However, these ideas will be developed further in the context of performativity of law and the theory of speech acts.

Tomáš Gábriš is Professor of Theory and History of State and Law at the Trnava University Faculty of Law in Slovak Republic, specializing in legal history, legal philosophy and legal methodology. He graduated in law, history, and philosophy, and publishes extensively on these topics. He authored approximately 250 papers, 10 books and 10 textbooks. Besides teaching legal history, legal philosophy and legal methodology at the Faculty of Law in Trnava, he is also a researcher employed at the Slovak Academy of Sciences in Bratislava, Slovakia, and an external researcher at the Palacky University in Olomouc, Czech Republic.
7. Vassilis Voutzakis (vvoutsak@law.uoa.gr)

Legal Ethics: The Withdrawal of Morality
Abstract: There have been numerous efforts to justify the so-called standard conception of legal ethics. The principles of partisanship, neutrality and non-accountability presuppose, according to those theories, a nexus of obligations stemming from the role of lawyer, a role which can be morally justified. In that respect, the standard conception of the lawyer’s role is based upon role ethics. It is questionable however whether role ethics is able to fulfil this function. I will argue for a more direct and, in the same time, differentiated view of the relation between morality and legal ethics.

Vassilis Voutsakis is an associate professor of Philosophy of Law at the Faculty of Law of the National and Kapodistrian University of Athens. He teaches Introduction the Legal Science, Philosophy of Law, Methodology of Law, and Legal Ethics. His research is centered on philosophy of law, practical philosophy, and political philosophy. He is the author of “Privacy: Theory of a Right” (ed. Sakkoulas, to be published 2022) and “Culture and the State” (ed. Polis, to be published 2022), as well as of numerous articles in Greece and abroad. He is the editor of “Isopoliteia”, a philosophy of law periodical.
8. Ivana Tucak (ivana.tucak@gmail.com)

Rethinking Academic Integrity
Abstract: Scientific journals represent the most important tool of communication between scientists. The key factor for the evaluation of scientists is their scientific productivity. In order for their scientific work to be positively evaluated, it is necessary for scientists to publish a considerable number of papers in journals indexed in relevant commercial databases (Web of Science Core Collection and Scopus). What also matters is that the published articles are highly cited. This preoccupation with numbers has changed the publishing culture and today, scientists are more preoccupied with how much and where they publish than with what they publish. The result is a significant increase in the number of journals and published papers, but this increase does not necessarily lead to the growth of science itself. Publishing pressure is often cited as a reason for scientific misconduct. This paper explores some of the biggest challenges in academia today: transparency and impartiality of the peer review process, publication of papers in predatory journals, growth of co-authorship, prolific authors, ghost writers and honorary writers.

Ivana Tucak is an associate professor of Theory of Law and State at the Faculty of Law of the University of Josip Juraj Strossmayer in Osijek, Croatia. Her area of interest involves theory of law and state, philosophy of human rights, constitutional rights, ethics and bioethics. She is the editor in chief of the “Pravni vjesnik”, journal of law and social sciences of the Faculty of Law of the Josip Juraj Strossmayer University in Osijek. She is a member of the Croatian Bioethics Society, Croatian Academy of Legal Sciences, and the vice president of the Croatian Association for Legal and Social Philosophy and Theory of Law and State.
9. Mario Krešić (mario.kresic@pravo.hr)

Political Responsibility Approach to the Determination of the Content of the International Law
Abstract: The problem of the determination of the content of the international law has always attracted attention in legal theory, doctrine and practice. Some authors introduced the method of determination of the legal content independently of the will of states. It can be argued that Ronald Dworkin and Hersch Lauterpacht belong to this group of authors. Patric Capps traces the connection between Lauterpacht’s progressive method and Dworkin’s interpretivist methodology and explained how Lauterpacht has applied his method to the issue of recognition of states. In this article we will elaborate in more detail Dworkin’s specific conception of the political responsibility applied on the international law and emphasize the difference between his method and the method of Lauterpacht.

Mario Krešić is an assistant professor at the Faculty of Law of the Zagreb University, where he teaches legal theory, human rights and prevention of atrocities. He holds a PhD in Law, an LLM and a MA in political sciences. His research interests lie in legal theory, international law, constitutional theory and human rights. Recent publications: “Compulsory adjudication: an emerging principle of European Law and the Western Balkans’ accession to the European Union?”; “Features of International Law: A Critical Account of the Prototype Theory of International Law”; “Process, Consequences and Means of (De)Constitutionalization: a Reconstruction of Guastini’s Concept of Constitutionalization”; “A Refugee Crisis at the Doorstep and a Neglected Solution: Three Misconceptions about the Temporary Protection Directive”.

10. Damir Banović (damir.banovic20@gmail.com)

Strengths and Weaknesses of Socio-Legal Theory
Abstract: In this presentation, I would like to address the question of what are strengths and weaknesses of contemporary socio-legal theory (understood as a version of legal positivism). For that purpose, I will elaborate following weaknesses presented in the subsequent statements: (1) different names and different methodologies for one discipline; (2) unclear methodological distinction between sociology of law and socio-legal theory (is there a need therefor?); (3) sociological method acknowledged among legal theorists as a legitimate method; (4) there is a need for its further theoretical improvements; (5) it depends on empirical research. On the other side, as a strength I argue that following statements are true: (1) socio-legal theory is a true general theory of law; (2) heuristic model for (better) understanding of other normative and law-like systems; (3) it helps to understand sources of law in a legal system (differentiating between formal and substantial sources); (4) it improves our understanding on how law interacts with the social context (e.g., contextual deliberation of norms).

Damir Banović is an assistant professor at the University of Sarajevo Faculty of Law (at the Department of Public and International Law). He teaches Introduction to Law, Philosophy of Law, and Comparative Federalism. His main research focus is contemporary socio-legal theory, theory of collective rights, minority rights, consociationalism, and comparative federalism.
11. Nikos Stylianidis (nstyl@cybex.gr)

Use of Algorithms in Dispute Resolution: Assumptions and Methodological Comments
Abstract: Use of AI techniques in order to resolve disputes (a task traditionally and strictly reserved to judicial organs) – and not only as a tool (e.g., for legal research) – affects our deepest convictions and long-standing practices about what the law is, and how it is applied; however, use of such techniques (as within the CREA – Conflict Resolution with Equitative Algorithms – project), with appropriate caveats, can be fruitfully accommodated within our legal and philosophical tradition and assist law’s efficient operation.

Despite obvious objections to the generalized use of AI in deciding cases, relevant worries should not be exaggerated, also in view of the current level of development of AI. Understanding of human action or behavior is still to be considered as a hermeneutical task, irreducible to a procession of brute data by computers.

More specifically, the CREA-algorithm is, in any case, a human artifact: the “cognitive subject” is ultimately, always “human”; besides, the algorithm does not think autonomously and “by itself”, but only processes data introduced by humans.

It assists in the resolution of disputes arising in the process of distribution of goods in divorce and inheritance; it is not an overall proponent of wholesale application of AI in dispute resolution in every field of law.

In a prejudice-free manner, it is fruitfully based on principles of classical economics, respects the volitions and rights of the parties (in line, e.g., with R. Dworkin’s conception of law, but, also, with ideas of governance and legal pluralism) and promotes fairness and equity while, at the same time, being realistic (in line with principles of legal realism and of a largo sensu utilitarianism).

The model fully respects the existing legal framework (both substantive and procedural) in force, providing a complementary tool within relevant common frameworks at European level; while respecting positive law, it aims at satisfying the need of quick and efficient resolution of disputes.

Nikos Stylianidis is a research coordinator at the Law School of the National and Kapodistrian University in Athens. After studies in Athens (BA in Law), and London (LL.M. at the L.S.E., including philosophy and scientific method), he got the PhD in analytic (legal) philosophy (with the scholarship at the European University Institute – Florence, and University of Paris X – Nanterre, under direction of Michel Troper) re-reading and reconstructing H.L.A. Hart's legal theory through ordinary language philosophy (of J.L. Austin and Wittgenstein). Back in Greece, he has researched and taught, coordinated applied projects at EU level, practiced law, and served as advisor to the Ministers of Finance and Interior during the first years of crisis in Greece (2010 - 2012); has been publishing mainly in Greek; and co-translated Rawls.
12. Milica Novaković (milica.novakovic@mids.ch)

Publicity of the Arbitration Proceedings in the Light of a Right to a Fair Trial as Seen by the European Court of Human Rights
Abstract: Arbitration proceedings are by default not public, unless parties agree otherwise, which is a rare occurrence. However, lately, under the transparency demands and, more often, under the pressure of the practice of the European Court of Human Rights and its broad interpretation of a right to a public hearing, the doors of the arbitral tribunals are opening slowly. Consequently, more arbitral decisions are available to public now and some procedural rules of the arbitral institutions are changing. These changes are affecting the party autonomy, a guiding principle of the arbitral proceedings. Therefore, this research presentation is aimed at exploring the existing body of the case law of the European Court of Human Rights on the matter of publicity of the arbitral proceedings and influence that the publicity requirement (as a guarantee of a right to a fair trial) have over the arbitral proceedings. There is a broad interest in examining this interaction of human rights and arbitration, the two systems which have been developing autonomously up until the last few decades, when the human rights law started re-shaping certain aspects of the arbitration proceedings in the light of a right to a fair trial.

Milica Novaković is a PhD student in civil procedure at the University of Belgrade Faculty of Law. She holds a Master in European Integration degree from the University of Belgrade Faculty of Law, and an LLM degree in International Dispute Settlement from the University of Geneva Faculty of Law and Graduate Institute of International and Development Studies in Geneva; is mediator and a tutor on the regional and national courses in human rights within the Council of Europe HELP Program (the European Program for Human Rights Education for Legal Professionals), as well as a legal consultant of the Council of Europe. Her work experience spans the ECHR and various international projects, where she garnered more than 10 years of experience. Particularly interested in procedural human rights and their impact on civil procedure and alternative dispute settlement, she speaks English, French and Russian, occasionally translating various legal documents to Serbian in her daily work and research.
13. Jasminka Hasanbegović (hasanbegovic.j@gmail. com)

Cultures of Dissenting in Legal Decision-Making
Abstract: Legal cultures include also rudeness, boldness, cowardice, legal knowledge, wisdom, ignorance, corruptedness, etc., etc. in discussing legal decisions and their arguments, or in justifying those decisions, or remaining silent about them. That is why here we take just few beads from legal decision-making kaleidoscope:

First – The paradox of democracy and the limits of disagreement by adopting, amending or changing the constitution (Aristotle relevance: With whom are we obliged to enter into discussion?).

Second – Referendum (as a form of democratic decision-making) and its meaning or meaninglessness according to the required number of votes in favor of or against a proposed decision, i.e. its pros and cons (the Serbian Referendum Law as an instructive example).

Third – Types of parliamentary votes: the absents and the presents, and among the latters: 1) the pros, 2) the cons, 3) the abstaineds, and 4) the “nonparticipants in voting”, i.e. those who are present in the real time of voting, but do not vote: neither pro, nor contra, nor abstained (sic!). (This is maybe a Serbian invention – contribution to populist democratic means.)

Fourth and fifth – Dissenting in judicial decision-making: English-common law origins vs. Continental (Civil) law culture either in criminal or civil law cases.

Sixth – Decisions taken by an adjudicative forum (i.e. a court-like body, Fr. instance parajudiciaire) – e.g. when, in spite of impeccably grounded proposal against the candidate, most of the scientific faculty council members vote abstained – out of fear, anxiety, opportunity, etc.

Seventh – Dissenting in constitutional matters. Differences between common law and civil law systems. Differences in publishing dissenting opinions.

Jasminka Hasanbegović is Professor at the University of Belgrade Faculty of Law; has published five books as a standalone author, another five as (co)editor, and nearly a hundred articles and book chapters, including some in English, French, German and Italian; has conducted research at l’Université Libre in Brussels, the Johannes-Gutenberg Universität-Rechtsfakultät in Mainz, the Ludwig-Maximilians-Universität in Munich, and elsewhere abroad; has been a Fellow of the Alexander von Humboldt Foundation, the DAAD, and the Goethe-Institut; has been co-editor of Serbian, Slovenian, and Croatian law journals, or a member of their advisory boards; was elected a member of the IVR EC in 2019.