Public Law as Political Jurisprudence

2018 ◽  
Author(s):  
Martin Loughlin
Keyword(s):  
Natural Law ◽  
Public Law ◽  
Modern Concept ◽  
Main Theme ◽  
Sovereign State ◽  
Positive Law ◽  
Modern Idea ◽  
The Subject ◽  
Type Of Exercise

The main theme of this chapter is to suggest that the nature of public law is best explained by examining the conditions of its formation. This type of exercise reveals that public law is a modern concept which is formed by reworking the medieval idea of natural law in the context of the emergence of the modern idea of the sovereign state. In this chapter, the nature of the subject is explored through analysis of the writings of Bodin, Pufendorf, and Rousseau. The objective is to show not only that public law is a broader concept than positive law but that it also has an ambiguous character. These ambiguities permeate modern public law thought and leave it with a polarized consciousness.

scholarly journals The problem of certainty of legal cognition (in the context of the evolution of Nature Law)**

2020 ◽  
Vol 2020 (3) ◽  
pp. 26-32
Author(s):  
Dzhenevra Lukovskaya ◽  
Irina Lomakina
Keyword(s):  
Law Enforcement ◽  
Natural Law ◽  
Point Of View ◽  
Classical Type ◽  
Positive Law ◽  
Modern Natural ◽  
Legal Communication ◽  
The Subject ◽  
Human Construction ◽  
Legal Understanding

The article deals with the problem of certainty of legal cognition in the context of the evolution of Natural Law. It is noted that the category of certainty was understood differently by representatives of various scientific schools and strands of theoretical framework idea. However, the classical doctrines were similar in the sense that certainty is necessary as the initial principle of cognition of legal reality, in contrast to the relativistic post-classical theories, which took the diametrically opposite principle as a methodological basis, namely «uncertainty». The article actualizes the understanding that Nature Law as a classical type of legal understanding has an internal logic of development. It is noted that modern theories of «Resurgence of Natural Law» generally remain within the framework of natural law concepts, but still overcome the dualism and parallelism of the systems of natural and positive law. In ontology, the modern Natural Law recognizes the human construction of law, the participation of the subject in the constant reproduction of legal reality; in epistemology, it recognizes the inclusion of the subject in the process of cognition, the rejection of the absolutization of the «legislative» mind and the transition to an interpretive «communicative» mind; in axiology, it defends socio – cultural concretization, including in the current legal system. The authors actualize the idea of intersubjectivity of law as integrating various aspects of legal cognition and the operation of law, focusing on identifying the meaning of law not from the point of view of one – dimensional monosubjectivity (individual or homogeneous society), but in dialogical (polylogical) intersubjectivity - in the interaction of subjects of legal communication. Recognition of the dynamism of law, the actualization of law in law enforcement activities problematizes the idea of certainty in law, but on a new, human-centered methodological and theoretical basis.

scholarly journals As vertentes do Jusnaturalismo e a atualidade temática do Direito Natural

2019 ◽  
Vol 1 (40) ◽  
Author(s):  
Reis Friede
Keyword(s):  
Natural Law ◽  
Current Work ◽  
Positive Law ◽  
Current Usage ◽  
Long Time ◽  
The Subject ◽  
Historical Controversies

RESUMOO debate que envolve o Jusnaturalismo e o Juspositivismo tem inspirado as reflexões de juristas e filósofos. Muito embora se possa afirmar que grande parte das históricas controvérsias associadas ao confronto entre o Direito Positivo e o Direito Natural já tenham sido superadas, subsistem inúmeros aspectos que merecem uma dedicação acadêmica. Não obstante opiniões divergentes, as quais pugnam pelo enfraquecimento teórico do assunto, o passar dos séculos demonstra justamente o contrário, posto não ter conseguido eliminar a estima dos pensadores pela temática ora desenvolvida. Deste modo, o presente artigo discorre sobre as diversas vertentes históricas (Cosmológica, Teológica e Racional) do Jusnaturalismo, analisando, ainda, a atualidade temática do Direito Natural.PALAVRAS-CHAVETeoria do Direito. Direito Natural. Jusnaturalismo. Juspositivismo. ABSTRACTThe debate regarding Jusnaturalism and Juspositivism has been inspiring the reflections of jurists and philosophers for a long time. Although it may be affirmed that a great deal of the historical controversies associated to the confrontation between the Positive Law and Natural Law has already been overcome, there are numerous aspects which deserve an academic dedication. Notwithstanding divergent opinions, which struggle for the theoretical weakening of the subject, the passing of the centuries demonstrates precisely the opposite, given that it could not eliminate the esteem of the thinkers for the subject in discussion. Therefore, the current work analyses the characteristics of the various historical strands of Jusnaturalism (Cosmological, Theological and Rational), as well as the current usage of the Natural Law.KEYWORDSLegal theory. Natural Law. Jusnaturalism. Juspositivism.

scholarly journals Silence and tacit consent in Armenian public law: Legal fiction, presumption or substitution?

2021 ◽  
Vol 12 (3) ◽  
pp. 728-751
Author(s):  
Artur S. Ghambaryan ◽  
Keyword(s):  
Public Law ◽  
Legal Issue ◽  
Presumed Consent ◽  
Positive Law ◽  
Legal Fiction ◽  
Tacit Consent ◽  
The Will ◽  
The Subject ◽  
Definition Of ◽  
Legal Consequences

In the article, the author researches the problematic aspects of silence in law, in particular, the definition of silence is provided, its meaning at various stages of historical development is outlined, the types of silence are described, the legal consequences of silence are discussed, and the place of silence in the sphere of legal conventions (legal presumptions, fictions, substitution). The author provides the following definition of silence: silence is a legitimate or unlawful inaction of the subject of legal relations, from which the conditional content of the subject’s will on a legal issue follows and (or) with which a positive law (transaction) directly connects the occurrence of legal consequences. Since silence can be interpreted as a sign of agreement or disagreement, it can be argued that it creates uncertainty. Given the fact that legal certainty in modern life is a constitutional value, positive law should exclude or mitigate this uncertainty, or the content of the will arising from silence should be predetermined by positive law or transaction. The result arising from the silence falls within the realm of legal conventions and in order to find out whether silence is a legal presumption, legal fiction or substitution, the article compares these categories. The author concludes that the legislator can formulate the same provision regarding silence both with the help of legal fiction (fictitious consent) and with the help of a legal presumption (presumed consent). At the same time, the article provides a justification for the impossibility of considering tacit consent as a legal substitution, in view of the fact that in objective reality there is no conditional silence, which is an essential reason for excluding the basis of legal substitution.

The Historical Method in Public Law

2018 ◽  
pp. 982-1000
Author(s):  
Martin Loughlin
Keyword(s):  
Sixteenth Century ◽  
Practical Knowledge ◽  
Central Element ◽  
Public Law ◽  
Modern Concept ◽  
Historical Method ◽  
Legal Thought ◽  
Modern Idea ◽  
Constituent Elements ◽  
Distinct Field

This chapter highlights the importance of the historical method in public law by showing the way that public law was established as a distinct field of knowledge in European jurisprudence. Since developments in French legal thought in the sixteenth century provided the catalyst for generating this modern concept of public law, this is the focus of the chapter. This approach exposes the constituent elements of public law and shows how the historical method becomes a central element of the modern practice of public law. It suggests that the modern idea of public law was created as a local, contextual, source-based practice in opposition to the universal metaphysics of medieval scholasticism. It was established by setting in place a conception of law as a body of practical knowledge that is historical in orientation and geared to the concerns of civil government.

Fakir Baykurt’un Almanya öykülerinde Türk göçmen çocukları

2016 ◽  
Vol 3 (1) ◽  
pp. 5-28
Author(s):  
Efnan Dervişoğlu
Keyword(s):  
Social Sciences ◽  
Migrant Workers ◽  
Life Experiences ◽  
Main Theme ◽  
Social Dimensions ◽  
Home Life ◽  
Literary Forms ◽  
The Social ◽  
The Subject ◽  
Life Education

Almanya’ya işçi göçü, neden ve sonuçları, sosyal boyutlarıyla ele alınmış; göç ve devamındaki süreçte yaşanan sorunlar, konunun uzmanlarınca dile getirilmiştir. Fakir Baykurt’un Almanya öyküleri, sunduğu gerçekler açısından, sosyal bilimlerin ortaya koyduğu verilerle bağdaşan edebiyat ürünleri arasındadır. Yirmi yılını geçirdiği Almanya’da, göçmen işçilerle ve aileleriyle birlikte olup işçi çocuklarının eğitimine yönelik çalışmalarda bulunan yazarın gözlem ve deneyimlerinin ürünü olan bu öyküler, kaynağını yaşanmışlıktan alır; çalışmanın ilk kısmında, Fakir Baykurt’un yaşamına ve Almanya yıllarına dair bilgi verilmesi, bununla ilişkilidir. Öykülere yansıyan çocuk yaşamı ise çalışmanın asıl konusunu oluşturmaktadır. “Ev ve aile yaşamı”, “Eğitim yaşamı ve sorunları”, “Sosyal çevre, arkadaşlık ilişkileri ve Türk-Alman ayrılığı” ile “İki kültür arasında” alt başlıklarında, Türkiye’den göç eden işçi ailelerinde yetişen çocukların Almanya’daki yaşamları, karşılaştıkları sorunlar, öykülerin sunduğu veriler ışığında değerlendirilmiş; örneklemeye gidilmiştir. Bu öyküler, edebiyatın toplumsal gerçekleri en iyi yansıtan sanat olduğu görüşünü doğrular niteliktedir ve sosyolojik değerlendirmelere açıktır. ENGLISH ABSTRACTMigration and Children in Fakir Baykurt’s stories from GermanyThe migration of workers to Germany has been taken up with its causes, consequences and social dimensions; the migration and the problems encountered in subsequent phases have been stated by experts in the subject. Fakir Baykurt’s stories from Germany, regarding the reality they represent, are among the literary forms that coincide with the facts supplied by social sciences. These stories take their sources from true life experiences as the products of observations and experiences with migrant workers and their families in Germany where the writer has passed twenty years of his life and worked for the education of the worker’s children; therefore information related to Fakir Baykurt’s life and his years in Germany are provided in the first part of the study.  The life of children reflected in the stories constitutes the main theme of the study.  Under  the subtitles of “Family and Home Life”, “Education Life and related issues”, “Social environment, friendships and Turkish-German disparity” and “Amidst two cultures”, the lives in Germany of children who have been  raised in working class  families and  who have immigrated from Turkey are  evaluated under the light of facts provided by the stories and examples are given. These stories appear to confirm that literature is an art that reflects the social reality and is open to sociological assessments.KEYWORDS: Fakir Baykurt; Germany; labor migration; child; story

The Common Law in Australia: Its Nature and Constitutional Significance

2004 ◽  
Vol 32 (3) ◽  
pp. 337-355 ◽  
Author(s):  
Leslie Zines
Keyword(s):  
Public Policy ◽  
Common Law ◽  
Public Law ◽  
Federal Law ◽  
Contemporary Debate ◽  
Policy Paper ◽  
Law And Policy ◽  
National University ◽  
The Subject ◽  
The Common

This article originally was published as a Law and Policy Paper. The Law and Policy Papers series was established in 1994 by the Centre for International and Public Law in the Faculty of Law, the Australian National University. The series publishes papers contributing to understanding and discussion on matters relating to law and public policy, especially those that are the subject of contemporary debate. In 1999 the papers were published jointly by the Centre for International and Public Law and The Federation Press. This article is reproduced in the Federal Law Review with the permission of the original publishers.

Fiduciary Principles and Public Offices

2019 ◽  
pp. 302-322
Author(s):  
Ethan J. Leib ◽  
Stephen R. Galoob
Keyword(s):  
Administrative Law ◽  
Public Law ◽  
Public Institutions ◽  
Policy Implications ◽  
Public Officials ◽  
Public Office ◽  
Public And Private ◽  
Normative Structure ◽  
The Public ◽  
Positive Law

This chapter examines how fiduciary principles apply to public offices, focusing on what it means for officeholders to comport themselves to their respective public roles appropriately. Public law institutions can operate in accordance with fiduciary norms even when they are enforced differently from the remedial mechanisms available in private fiduciary law. In the public sector, fiduciary norms are difficult to enforce directly and the fiduciary norms of public office do not overlap completely with the positive law governing public officials. Nevertheless, core fiduciary principles are at the heart of public officeholding, and public officers need to fulfill their fiduciary role obligations. This chapter first considers three areas of U.S. public law whose fiduciary character reinforces the tenet that public office is a public trust: the U.S. Constitution’s “Emoluments Clauses,” administrative law, and the law of judging. It then explores the fiduciary character of public law by looking at the deeper normative structure of public officeholding, placing emphasis on how public officeholders are constrained by the principles of loyalty, care, deliberation, conscientiousness, and robustness. It also compares the policy implications of the fiduciary view of officeholding with those of Dennis Thompson’s view before concluding with an explanation of how the application of fiduciary principles might differ between public and private law settings and how public institutions might be designed or reformed in light of fiduciary norms.

scholarly journals Human Rights and Human Nature

2016 ◽  
Vol 28 (4) ◽  
pp. 523-534
Author(s):  
Jean Rhéaume
Keyword(s):  
Human Rights ◽  
Human Nature ◽  
Natural Law ◽  
Historical Context ◽  
Human Being ◽  
Positive Law

At least two important consequences follow from the fact that human rights are based on human nature. First, they exist according to natural law even in cases where positive law does not recognize them. Secondly, they cannot evolve because the nature and purpose of the human being does not change: only their formulation and level of protection in positive law can vary according to the socio-historical context.

scholarly journals Takzir sebagai Hukuman dalam Hukum Pidana Islam

2019 ◽  
Vol 21 (2) ◽  
pp. 255-272
Author(s):  
Usammah Usammah
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Legal System ◽  
National Level ◽  
Public Law ◽  
Community Life ◽  
Positive Law ◽  
Sharia Law ◽  
Interesting Part ◽  
Western Law

Memformalisasikan syariat Islam baik dalam ranah kehidupan bermasyarakat dan sosial, dalam bernegara dan berbangsa tidak jarang terjadi perdebatan, baik perdebatan sosial-politik maupun keagamaan. Perdebatan itu di samping menyangkut memahami ajaran agama dan hubungannya dengan negara-bangsa, juga dalam memahami sistem hukum yang ada dalam negera, lebih-lebih bahwa negera menganut sistem hukum positif yang lebih banyak dipengaruhi oleh hukum barat. Gagasan pemberlakuan hukum pidana Islam tidak serta merta dapat dijalankan dengan baik tanpa adanya legislasi dan pembentukan hukum pidana Islam materil sebagai hukum positif yang berlaku. Juga bahwa hukum pidana Islam adalah hukum publik yang membutuhkan kekuasaan negara baik dalam pembentukannya maupun dalam penegakannya. Dalam hubungannya dengan legislasi dan pembentukan hukum (qanun syariat Islam), maka hal yang sangat menarik adalah bagaimana menentukan bentuk jarimah dan uqubatnya baik yang termasuk dalam kategori hudud, qisas, dan takzir sebagai bagian dari sistem penegakan hukum syariat Islam. Takzir as a Punishment in Islamic Criminal Law The formalizing of Islamic Sharia Law both in the realm of social and community life and also in the state and national level. This issue is frequently debatable, both in socio-political as well as in religious matter. The debate is not only about understanding religious teachings and their relationship with the nation, but also about understanding the legal system applicable in the country, especially the country which apply a positive legal system that influenced by western law. The idea of enforcing Islamic Criminal Law cannot be carried out properly without the existence of legislation and the establishment of Islamic Criminal Law as a positive law that enforced. In addition, Islamic Criminal Law is a public law that requires state power both in its formation and in its enforcement. In relation to legislation and the formation of law (Qanun Sharia), the very interesting part is how to determine the form of rahmah and uqubat both are included in the hudud, qisas and takzir categories as part of the Islamic Sharia law enforcement system.

scholarly journals Self-portrait of the philosopher in the context of the enlightement

2012 ◽  
Vol 23 (3) ◽  
pp. 199-217
Author(s):  
Vanja Radakovic
Keyword(s):  
Natural Law ◽  
Literary History ◽  
History Of Philosophy ◽  
Epistolary Novel ◽  
The Enlightenment ◽  
Biographical Approach ◽  
History Of ◽  
The Subject

In the history of philosophy, Jean-Jacques Rousseau is mainly considered as an atypical philosopher of the Enlightenment, as a pioneer of the revolutionary idea of a free civilian state and natural law; in literary history, he is considered the forerunner of Romanticism, the writer who perfected the form of an epistolary novel, as well as a sentimentalist. However, this paper focuses on the biographical approach, which was mostly excluded in observation of those works revealing Rousseau as the originator of the autobiographical novelistic genre. The subject of this paper is the issue of credibility of self-portraits, and through this problem it highlights the facts from the author?s life. This paper relies on a biographical approach, not in the positivistic sense but in the phenomenological key. This paper is mainly inspired by the works of the Geneva School theorists - Starobinski, Poulet and Rousset.

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