TOLERANCE OF INCOHERENCE IN LAW, GRADED SPEECH ACTS AND ILLOCUTIONARY PLURALISM

Legal Theory ◽  
2020 ◽  
Vol 26 (3) ◽  
pp. 214-249
Author(s):  
Oren Perez
Keyword(s):  
Present Article ◽  
Rule Of Law ◽  
Speech Acts ◽  
Legal Systems ◽  
The Rule Of Law ◽  
Lexical Semantic ◽  
Inferential Model ◽  
Conflicting Demands ◽  
The Law ◽  
The Way

AbstractOne of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications.

scholarly journals Transformasi Madzhab Qouli Menuju Madzhab Manhaji Jama`iy dalam Bahtsul Masa`il

2018 ◽  
Vol 4 (1) ◽  
pp. 19-29
Author(s):  
Imam Syafi`i
Keyword(s):  
Rule Of Law ◽  
Legal System ◽  
Legal Decision ◽  
The Rule Of Law ◽  
Existing Problems ◽  
Legal Instrument ◽  
Way Of Thinking ◽  
The Law ◽  
The Way

Among the forums to solve the problem are collectively known as 'bahtsul masa'il'. the legal decision is collective, derived from the consensus of the participants. His method of searching references (maraji ') to find answers regarding the existing problems, known as Madzhab Qauli, madzhab which is understood as the opinion or fatwa of a Mujtahid or Mufti in deciding fiqhiyyah law. However, not infrequently stagnation (maukuf) in the termination of the law. Because there are no references or books that explain the problem. As a result, if enforced (laws with existing references) result in unfair decisions and other issues for the community.From this manifestation of schools began to be considered important to be developed. That is a way to answer the problems faced by following the way of thinking and the rule of law which has been drawn up by the madzhab priest as described above. This last method is actually an attempt to decide the law by directly returning al-Qur'an, al-Hadits and so on by using tools qawa'id ushuliyyah and qawa'id fiqhiyyah. Everyone can not run this method individually. because the legal instrument of the legal system must be completely mastered. Therefore this Manhaji Method can be developed by means of ijtihad Jama'i that is the hard effort of some experts in their respective fields maximally in exploring the law of syar'i which is dhanni by using the method of istimbat. The decision is based on the agreement of the ulama or by acclamation, which is to take the most votes from the results of the deliberations. Keyword: Madzhab Qouli, Madhab Manhaji, Bahtsul Masa`il

3. The rule of law

Public Law ◽  
2018 ◽  
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Ancient Greece ◽  
The Rule Of Law ◽  
The Law ◽  
The Uk ◽  
The Way

This chapter starts by defining the rule of law, explaining its importance and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the consideration provided by Dicey who, writing his seminal text An Introduction to the Study of the Law of the Constitution — (1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern day authorities.

scholarly journals The Social History of Law as a Factor of the Rule of Law

2021 ◽  
Vol 67 (2) ◽  
pp. 172-201
Author(s):  
Yury Fogelson ◽  
Dmitry Poldnikov
Keyword(s):  
Social History ◽  
Rule Of Law ◽  
Social Norm ◽  
Legal Systems ◽  
The Rule Of Law ◽  
The Social ◽  
History Of ◽  
The Law ◽  
The Stability ◽  
K 12

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types-the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a "triangle" of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law. / JEL Classification: K 10; K 11; K 12

3. The rule of law

Public Law ◽  
2020 ◽  
pp. 72-114
Author(s):  
John Stanton ◽  
Craig Prescott
Keyword(s):  
Rule Of Law ◽  
Ancient Greece ◽  
The Rule Of Law ◽  
The Law ◽  
The Uk ◽  
The Way

This chapter starts by defining the rule of law, explaining its importance, and placing its origins in Ancient Greece and the writings of Aristotle. Following a brief consideration of how the principle has developed since that time, it discusses the consideration provided by Dicey who, writing his seminal text An Introduction to the Study of the Law of the Constitution—(1885), explored the meaning of the rule of law and its place in the UK Constitution. The chapter then considers broader theories of the rule of law, dividing these into those that support what are known as ‘formal conceptions’ of the rule of law, and ‘substantive conceptions’ of the rule of law. Finally, it explores the way in which the rule of law can be said to apply in the UK Constitution, both historically and in terms of modern-day authorities.

scholarly journals The social history of law as a factor of the rule of law

2021 ◽  
Vol 30 (2) ◽  
pp. 59-93
Author(s):  
Dmitry Poldnikov ◽  
Yuriy Fogelson
Keyword(s):  
Social History ◽  
Rule Of Law ◽  
Social Norm ◽  
Professional Community ◽  
Legal Systems ◽  
The Rule Of Law ◽  
The Social ◽  
History Of ◽  
The Law ◽  
The Stability

The rule of law, understood as ideology and legal rules, is believed to be a competitive advantage of Western civilization, supporting its sustainable development. Yet it can also be viewed as a social norm of citizens who respect the law and follow its commands. How does this social norm emerge in different societies? This question must be answered through the social history of the law in Western and non-Western societies from a comparative perspective. This paper outlines the main features of comparative socio-legal history and tests it on some significant historical examples. In the first part of the article, the authors propose a functional classification of legal systems into three ideal Weberian types–the law of judges, learned law, and the law of the authorities. It allows us to consider the origin of the social norm of the rule of law. In the second part of the article, the authors trace the transition from the ideal types to natural legal systems and identify the factors that determine the stability of the social norm of the rule of law where it originated. In the final part of the article, the authors conclude that, first, the social norm of the rule of law emerged in the societies where the law had been treated either as a means of resolving disputes (the law of judges) or as the rules of fair, correct conduct (learned law), for example, the Roman Republic, medieval England, continental Europe, and the Ottoman Empire. Secondly, the stability of the social norm of the rule of law seems to be explained by a “triangle” of factors, namely: 1) political competition where all participants understand the inevitability of compromise on the basis of the law, 2) law which is suitable for finding a compromise due to its internal merits, 3) a professional community of jurists who develop and apply law independently of the administration. Such a triangle is possible in any society where the law of judges or learned law prevails and where the majority of participants in the political process are ready to compromise based on the current law.

The Rule of Law in the Age of Statutes

2020 ◽  
Vol 48 (2) ◽  
pp. 159-185
Author(s):  
Lisa B Crawford
Keyword(s):  
Empirical Analysis ◽  
Rule Of Law ◽  
Administrative Law ◽  
Federal Legislation ◽  
Administrative State ◽  
The Rule Of Law ◽  
Legitimate Expectations ◽  
The Law ◽  
Law And Legislation ◽  
The Way

This article provides an empirical analysis of the legislative practice of the Australian Parliament and considers its implications for the rule of law. Federal legislation is so voluminous, complex and changeable that it risks diminishing the rule of law, in the sense that it makes the law difficult to know. This could be potentially ameliorated by Australian courts embracing Chevron-style deference, or an administrative law doctrine of legitimate expectations, but neither option is ideal. More broadly, the article comments upon the way in which the rule of law and legislation should be understood in a modern administrative state.

LEGAL ESSENCE OF ANCIENT PROVERBS AND SAYS AND THEIR SOCIAL SIGNIFICANCE

2020 ◽  
Author(s):  
Angela Dranishnikova ◽  
Ivan Semenov
Keyword(s):  
Public Sphere ◽  
Rule Of Law ◽  
Social Significance ◽  
The Rule Of Law ◽  
The Public ◽  
Moral Standards ◽  
The Social ◽  
The Law ◽  
The Public Sphere ◽  
Status Position

The national legal system is determined by traditional elements characterizing the culture and customs that exist in the social environment in the form of moral standards and the law. However, the attitude of the population to the letter of the law, as a rule, initially contains negative properties in order to preserve personal freedom, status, position. Therefore, to solve pressing problems of rooting in the minds of society of the elementary foundations of the initial order, and then the rule of law in the public sphere, proverbs and sayings were developed that in essence contained legal educational criteria.

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