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BRICS Law Journal

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Vol 2, No 2 (2015)
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https://doi.org/10.21684/2412-2343-2015-2-2

ARTICLES

7-24 633
Abstract
The transparency of governance is not only a necessary and sufficient condition for bringing about accountability, but also the basis for the possibility of democracy in the global sphere. Although there is no automatic progress from transparency to democratic global governance, this principle helps to create more democratic, open and fair societies. Recently, the importance of inclusiveness, transparency and procedural safeguards has emerged as a critical theme. The practical implementation of fair global governance mechanisms, procedures, and institutions will always depend on the level of participation, contestation, or solidarity among the different stakeholders represented at the local, national or international level. Recent years have clearly shown a trend towards increasing transparency and inclusiveness in international organizations’ activities and operations, in contrast to opaqueness or lack of transparency which was a very common practice in diplomacy during past centuries. The inclusion of transparency and inclusiveness elements in the decision-making rules of an international organization are fundamental for these norms to be considered not only ‘more legal,’ but also to have a higher level of legitimacy. The General Assembly decided in its Resolution 60/251 of 2006 that the methods of work of the Human Rights Council should be transparent, fair and impartial and should enable genuine dialogue. Finally, the role played by the BRICS countries at the Security Council and the Human Rights Council is critical in regards to its working methods.
25-33 407
Abstract
The influence of terror ideology on religious, continental and Anglo-Saxon legal systems is described in this article. The article sets out the specifics of modern terror ideology, its distribution mechanisms, the degree of danger of terrorism to certain states and the need for the creation of an interstate anti-terror ideology protection system. In order to achieve effective research results, it was based on a combination of the various methods accepted in domestic law, including the general, general scientific, interdisciplinary and special methods.
34-49 431
Abstract
This article provides an overview of certain ideologemes of Western (European) and Russian legal consciousness – prominent works of Ivan Ilyin and Duncan Kennedy are taken as examples. The article analyzes the tabula rasa principle and its place in legal consciousness. We use legal scholarship, judicial practice and opinion polls to examine the relationship between legal consciousness and the lack of trust in Russian courts, as well as their inefficiency from the point of view of public opinion. There are a number of shocking cases of torture of innocent people by the Russian police. Why is this so? The answer lies in the legal consciousness of police officers and of judges. This is something that has been inherited from the Soviet period. It is completely different from the Western legal consciousness, one of the key features of which is denial of authority. The critical legal studies branch of American legal realism almost denies the very existence of law, and, perhaps for this reason, American culture is less open to abuses like torture. At the same time, there is no possibility to shift legal consciousness immediately, the tabula rasa principle does not work. The final objective of the article is to provide a perspective on the reform of higher legal education and its relation to legal consciousness and legal anthropology. We propose that a greater part of the university curriculum is devoted to legal anthropology.
50-67 428
Abstract

The rapid growth of industrial town and factories has paved the way to develop our industrial legislation accordingly. The Government of India never expressed their interest in framing separate legislation vis-à-vis factories which resulted in implementation of the same statute which was enacted pre-independence. It was done by virtue of Art. 372 of the Constitution of India. However, the Constitutional Lawmakers created vacuum for the implementation of new statute in accordance with the demand of society by inserting scope under the Directive Principles of State Policies. However, in the 67 years history of Indian Republic, there are unprecedented developments of law relating to factories in India.
The Government of India, with the adoption of existed statute, made an effort to incorporate the welfare legislation but it never developed along with the change in time. It is to be noticed that as far as existing statutes are concerned, the development is an effect of judicial pronouncement or some tragic incident like Bhopal Gas Tragedy. This paper succinctly describes the history of factory legislation, the constitutional validity of the previous statute and necessary amendment which have already been done and / or on the verge of being amended. It will further discuss contribution of judiciary in developing the law relating to factories, scope of industrial jurisprudence in promoting the development of factory legislation. The primary focus of the research project is to reflect upon the areas where factory legislation has developed, so that proper yardstick could be made in order to put emphasis on those areas which have been remained untouched.

COMMENTS

68-85 415
Abstract
Legal aid in India has evolved over the last few decades since 42nd Amendment to the Indian Constitution. This paper attempts to provide philosophical underpinnings suggesting how legal aid model has evolved over the years and excogitate a newer trajectory for its future evolution. It delves into weighing Kant’s imperfect duty justifying a charity based regime and marks a transition to utilitarian model suggesting requirement of institutional need to address issues of basic liberty of ‘access to justice.’ It also spells out Rawls’ principles of justice and attempts to explore their applicability in the Indian context, to chart out a road map for future. While contrasting different models on legal aids, it makes a finding that, India doesn’t accord priority to liberty of access to justice. The Indian Supreme Court has emerged as a bastion of liberty but the finer details of the enactment has been messed up by the Indian lawmakers. The lower compensation to lawyers and lack of alternative incentives in attracting established litigators, testifies this. There is a convergence in Kantian duty of benevolence and Rawls’ liberty principle but in the world of moral relativism, a fair compensation must precede before imposing any obligation on lawyers to take up pro bono matters, as doing so, is likely to compromise their ‘true needs.’

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ISSN 2409-9058 (Print)
ISSN 2412-2343 (Online)