scholarly journals [357]The Idea of Justice

2019 ◽  
pp. 347-370
Author(s):  
Alf Ross
Keyword(s):  
Natural Law ◽  
General Rule ◽  
Central Place ◽  
Legal Problems ◽  
The Social ◽  
Substantive Justice ◽  
The Law ◽  
Correct Application ◽  
Formal Justice

This chapter analyses the idea of justice in light of its central place in natural law. As a specific principle of law, justice is concerned with the outer limits and harmonization of conflicting desires, claims, and interests in the social coexistence of a plurality of individuals. Taking the view that all legal problems are problems of distribution, the postulate of justice amounts to a demand for equality in the distribution or allotment of advantages or burdens. Through examples of competing formulations of the idea of justice, it is demonstrated that such formulations comprise two elements: the formal demand for equality as such; and a substantive criterion in order to determine the class to which the norm of equality is to be applied. The formal ideal of equality as such refers only to the correct application of a general rule, whereas the presupposed substantive criterion is what gives content and force to the actually efficacious formula for justice. On this background, it is argued that once the substantive criterion has been determined, it is meaningful to speak of (formal) justice. However, it is meaningless to speak of (substantive) justice in the sense of claiming that certain substantive criteria are just as opposed to others. Whereas justice, as a norm for the legislator (as a yardstick for the ‘correctness’ of the law), is merely a chimera, justice as a norm for the judge is, on the contrary, a living and palpable reality.

scholarly journals MENGGUGAT RELASI FILSAFAT POSITIVISME DENGAN AJARAN HUKUM DOKTRINAL

2012 ◽  
Vol 12 (1) ◽  
Author(s):  
FXAdji Samekto
Keyword(s):  
Social Sciences ◽  
Natural Law ◽  
Natural Science ◽  
Legal Positivism ◽  
Logical Positivist ◽  
The Social ◽  
The Law

In the teaching of law, there is often "mistaken", that puts legal positivism (jurisprudence)  is identical with the philosophy of positivism. Legal positivism be identified as an instance of positivism philosophy intact. The study of legal positivism, in fact very closely related to the philosophy and teachings of the law from time to time. The effects of natural law in the scholastic era, then the era of rationalism and the influence of positivism in the philosophy of natural science is very attached to the legal positivism until today. Therefore not only the philosophy of positivism affecting the development of legal positivism. Based on that then the legal positivism in fact has a characteristic which is different from the social sciences. If the social sciences were developed based on the philosophy of positivism, the doctrinal teaching of the law is not entirely been developed based on the philosophy of positivism. Not all the logical positivist philosophy can be applied in the doctrinal law. Keywords : positivism, legal positivism, doctrinal

scholarly journals Relacja prawa i moralności z prawnego punktu widzenia. Moralność partykularna a moralność kooperatywna

2020 ◽  
pp. 42-53
Author(s):  
Jerzy Leszczyński
Keyword(s):  
Point Of View ◽  
The Other ◽  
Individual Identity ◽  
Michael Walzer ◽  
Public And Private ◽  
Legal Problems ◽  
The Social ◽  
Law And Morality ◽  
The Law

This article describes the relation between law and morality when applied to solving legal problems. The relation in question is not understood solely as a conflict between law and morality which implies a need to decide in favour of one or the other. Indeed, moral substance of law make references to morality not only possible but necessary. The limit for those references is established by the principle of equality before the law. Moreover, an internal diversification of morality is analyzed. Some part of it needs to be secured by law, which in itself does not harm the social or individual identity, that is, public and private morality is distinguished, then minimal and maximal morality – concepts proposed by Michael Walzer. This idea, approached from a legal point of view, leads to the formulation of what seems the best-founded proposal: particular and cooperative morality.

Overton, Richard (d. circa 1665)

2018 ◽  
Author(s):  
Udo Thiel
Keyword(s):  
Social Contract ◽  
Natural Law ◽  
The Social ◽  
The Law

Overton was one of the leading figures of the radical Leveller movement in England in the 1640s. He fought for the equality of all men before the law and for complete religious and political toleration, often by appealing to notions such as the social contract and the natural law. In metaphysics he denied that the soul is a separate immaterial and immortal substance, arguing that immortality is not achieved until the resurrection. His views on the soul may have influenced Milton.

scholarly journals The Argument of Rightness as an Element of the Discretionary Power of the Administrative Judge

2019 ◽  
Vol 33 (1) ◽  
pp. 215-229
Author(s):  
Bartosz Wojciechowski ◽  
Marek Zirk-Sadowski
Keyword(s):  
Decision Making ◽  
General Rule ◽  
Decision Making Process ◽  
Discretionary Power ◽  
Moral Principles ◽  
Substantive Justice ◽  
Moral Rules ◽  
The Law

AbstractThe article concerns the situation of the judicial application of the law where the entity applying the law refers in a decision-making process to moral principles. The decision should be based on the directives of interpretation, which indicate the need for such a determination of the meaning of the applicable norms so that it remains in harmony with commonly accepted moral rules of the society. The equity (understood as rightness) has one more purpose; namely, it allows for the process of decision-making—and not just for the process of unifying the decisions—since the mere rule does not specify the algorithm of undertaking them. This rule thus assumes that it will be further specified by phronesis judge who in a given situation will determine—for the purposes of a particular decision—a hierarchy between the criteria of substantive justice “embedded” in this rule. The reference to equity (rightness) stands for the concretization of an unspecified general rule. We deal here with an indefinite general rule, the application of which is facilitated by a reference to rightness.

scholarly journals THE PROGRESIVE RECHTSVINDING IN CRIMINAL JUSTICE PROCESS

2016 ◽  
Vol 1 (2) ◽  
pp. 214
Author(s):  
Wahyu Wahyu
Keyword(s):  
Criminal Justice ◽  
Legal Institutions ◽  
Legal Proceedings ◽  
Positive Law ◽  
New Beginning ◽  
The Social ◽  
Justice Process ◽  
Criminal Justice Process ◽  
Substantive Justice ◽  
The Law

The positive law still dominates in Indonesian’s law. Currently the legal institutions must do a new beginning. Legal proceedings not often able to resolve the law issue clearly, even provide the substantive justice for both of the perpetrators and the victims. The discovery of progressive law in the criminal justice process is indispensable today.  For example is to implement the progressive judge’s decision that’s mean it is not just legalistic as a depictions of the constitution, judge’s decision not only to maintain order but to deliver improvements in public and to build the social harmonitations. For the last, judge’s decision must be visionary that reborned the courage morality  and legal breakthrough for the better nation.

SOCIAL RESPONSIBILITY OF THE COURT AS A PREREQUISITE FOR THE LEGAL RESPONSIBILITY OF A JUDGE

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Social Responsibility ◽  
Legal Responsibility ◽  
Court Cases ◽  
Council Of Europe ◽  
The Public ◽  
The Social ◽  
Modern System ◽  
The Status ◽  
The Law ◽  
Conceptual Foundations

The article reveals the conceptual foundations of the social responsibility of the court as an important prerequisite for the legal responsibility of a judge. It has been established that the problem of court and judge liability is regulated by the following international and Ukrainian documents, such as: 1) European Charter on the Law «On the Status of Judges» adopted by the Council of Europe; 2) The Law of Ukraine «On the Judicial System and the Status of Judges»; 3) the Constitution of Ukraine; 4) The Code of Judicial Ethics, approved by the Decision of the XI (regular) Congress of Judges of Ukraine; 5) Recommendation CM/Rec (2010) 12 of the Cabinet of Ministers of the Council of Europe to member states regarding judges: independence, efficiency and responsibilities; 6) Bangalore Principles of Judicial Conduct. The results of a survey conducted by the Democratic Initiatives Foundation and the Razumkov Center, the Council of Judges of Ukraine and the Center for Judicial Studios with the support of the Swiss Agency for Development and Cooperation based on the «Monitoring of the State of Independence of Judges in Ukraine – 2012» as part of the study of the level of trust in the modern system were considered and analyzed, justice, judges and courts. It is determined that a judge has both a legal and a moral duty to impartially, independently, in a timely manner and comprehensively consider court cases and make fair judicial decisions, administering justice on the basis of legislative norms. Based on the study of the practice of litigation, it has been proven that judges must skillfully operate with various instruments of protection from public influence. It has been established that in order to ensure the protection of judges from the public, it is necessary to create special units that will function as part of judicial self-government bodies. It was proposed that the Council of Judges of Ukraine, which acts as the highest body of judicial self- government in our state (in Ukraine), legislate the provision on ensuring the protection of the procedural independence of judges.

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.

On the Legitimacy of Expectations

2018 ◽  
Author(s):  
Alexander Brown
Keyword(s):  
Basic Structure ◽  
Legitimate Authority ◽  
Complex Theory ◽  
Role Responsibility ◽  
Administrative Agencies ◽  
Substantive Justice ◽  
The Subject ◽  
The Law

Section I identifies the weaknesses in existing accounts which locate the legitimacy of expectations in underpinning laws and legal entitlements (the Law-Based Account), in the substantive justice of expectations and/or the justice of the basic structure which forms the background to expectations (the Justice-Based Account), or in the legitimacy of the governing agencies and political authorities whose acts and omissions are both the cause and the subject of expectations (the Legitimate Authority-Based Account). Section II introduces a rival account, the Responsibility-Based Account, according to which the legitimacy of expectations depends on the responsibility of governmental administrative agencies for bringing about agent’s expectations, allied to those agencies already having been given or having assumed a role responsibility for making binding decisions affecting the important interests of agents. Finally, Section III expounds in more detail the complex theory of responsibility that undergirds the Responsibility-Based Account.

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