Weber’s Aims in the ‘Sociology of Law’

2020 ◽  
pp. 22-37
Author(s):  
Hubert Treiber
Keyword(s):  
Civil Rights ◽  
Criminal Law ◽  
Building Blocks ◽  
University Education ◽  
Sociology Of Law ◽  
Freedom Of Contract ◽  
Procedural Law ◽  
The Law ◽  
Substantive Law ◽  
Developmental Conditions

This chapter discusses Max Weber's aims in the ‘Sociology of Law’. Before exploring in detail Weber's ‘Sociology of Law’, its essential assumptions and conclusions, as well as its conceptual apparatus, it is necessary to outline briefly its two opening sections. In the first section, established areas of the law are treated in brief, such as public law, private law, criminal law, procedural law, and substantive law. In the second section, the most important forms/categories of subjective law are presented in overview, including the classical civil rights and liberties. Weber also provides an overview of contract and the development of freedom of contract. For all their heterogeneity, Weber's remarks in his ‘Sociology of Law’ can be brought together into a historically grounded ‘theory’ of the rationalization of the law and its developmental conditions. This theory of the rationalization of the law has various basic ‘building blocks’. First and foremost, it requires a standard measure for the level of rationalization that has been reached. In a process of rationalization, ideal-typical stages of development are required. Weber also pays particular attention to two basic types of legal training or legal teaching: first, the ‘craft’ approach in the sense of the ‘empirically’ driven training of lawyers; and second, university education organized in a theoretical and academic manner.

scholarly journals Economic Theory of Criminal Law

2019 ◽  
Author(s):  
Keith N. Hylton
Keyword(s):  
Economic Theory ◽  
Criminal Law ◽  
Modern Synthesis ◽  
Deterrence Theory ◽  
Public Enforcement ◽  
Positive Economic ◽  
Incentive Effects ◽  
Normative Economic ◽  
The Law ◽  
Substantive Law

Criminal law consists of substantive and procedural parts. Substantive law is the set of rules defining conduct that violates the law. Procedural criminal law is the set of rules regulating the process of punishment. Substantive rules apply mostly to individual actors, and procedural rules apply to public enforcement agencies and adjudicators. Economic theory of criminal law consists of normative and positive parts. Normative economic theory, which began with writings by Beccaria and Bentham, aims to recommend an ideal criminal punishment scheme. Positive economic theory, which appeared later in writings by Holmes and Posner, aims to justify and to better understand the criminal law rules that exist. Since the purpose of criminal law is to deter socially undesirable conduct, economic theory, which emphasizes incentives, would appear to be an important perspective from which to examine criminal law. Positive economic theory, applied to substantive criminal law, seeks to explain and to justify criminal law doctrine in economic terms—that is, in terms that emphasize the incentive effects created by the law. The positive economic theory of criminal law literature can be divided into three phases: Classical deterrence theory, neoclassical deterrence, and modern synthesis. The modern synthesis provides a rationale for fundamental criminal law doctrines and also more puzzling portions of the law such as the doctrines of intent and necessity. Positive economic theory also provides a rationale for the allocation of enforcement responsibilities.

scholarly journals Legal Gap: Pertentangan Hukum Masyarakat dan Hukum Negara

2020 ◽  
Vol 10 (1) ◽  
pp. 54-72
Author(s):  
Saeful Bahar Bahar
Keyword(s):  
Law Enforcement ◽  
Social Science ◽  
Restorative Justice ◽  
Criminal Law ◽  
Logical Consequence ◽  
Sociology Of Law ◽  
Literature Study ◽  
Grassroots Level ◽  
The Law

This article highlights the controversy of revised act of corruption commission (UU KPK) and of the Book of Criminal Law (KUHP) which had heated up. By using legal gap theory, this writing uncovers the legal gap between the contents of revised KUHP and living laws. Consequently, people in the grassroots level seem more enthusiastic about the issue, for example, the fines because livestock entering other people yards than weakening KPK issues that drive a wave of demonstrations at the level of well-educated people. Many studies in the sphere of sociology of law that have conducted gave much attentions to the living law or norm in the mods of society. However there is not much of them which gave attention to the legal gap phenomena, it is the incompatibility between living law and formal one. Whereas, such an approach tend to be considered late if it we aim to put the sociology of law as one discipline of social science which is useful in strengthening the law enforcement. In the hilt of the matter, there is an issue of the legal gap which should have been expressed from the beginning, mainly as to the compatibility between formal and informal law when legislation was going on. By utilizing literature study, the research found that; firstly, the resistance against revised KUHP is the logical consequence of legal gap phenomena that has potential legal conflict. Secondly, there are four major manners could be done to resolve the gap; repression, counseling, reformation and restorative justice.

3 LEGAL EDUCATION AND THE INTRODUCTION OF SKILLS OF ARGUMENT At the academic stage of education the standard framework around which teaching takes place is that of legal analysis. Legal education is orientated towards the case method: how cases in courts are described and analysed. The student’s skill in understanding cases, how they have been argued and how the law has been applied, is tested by asking the student to solve a hypothetical problem. The student is given the hypothetical facts. Often students are asked to present advice for one fictional party to a case. The student goes to the library (virtual or real) and searches in books and journals, and the law reports to find similar, analogous cases, noting how these have been decided and why Then that student infers how the hypothetical case he or she has to argue will be decided, basing their inferences on the way applicable legal rules were applied in real cases. The legal analysis that students are trained to do, of course, involves basic analysis of the facts of the case. Which are the material facts? How can the facts as given be organised to make it clear that earlier cases apply? In the standard university problem question (see Chapter 8), the facts do not need to be ascertained, they are given as a neat logically ordered story. In real life, these stories are messier, the relevant facts more difficult to extract, and the doubts and solutions are not so clear. At the vocational stage of legal training, the student is taught to engage in factual analysis and this provides the framework for the course. The student is also taught how to structure, organise and analyse a large amount of what we could call ‘raw data’. They are taught to draw out the probable story from clients, the inferences in the data and see how available evidence can support the argument on the case to be proved. Evidence is correlated to the relevant facts, the facts in issue (eg, that Anna stole a book). The legal principles are assumed. Indeed this aspect of legal education reverses the process noted above in university education of drawing out legal analysis. The legal principles are for the present at least, not in issue, but a given. Theft is against the law. The test of development for the student is to see how skilled they are in deciding whether the factual data that has been made available can be put into a structure that makes it possible to construct a viable argument. An argument that proves Anna is guilty of theft, for example, because enough evidence exists to prove the elements of the unlawful act according to the relevant standard of proof. In reality the good lawyer needs to be able to engage in competent legal analysis and factual analysis. Whilst the difference between the two is important the rigid demarcation between the two for the purpose of the academic/vocational divide is unnecessary and at the early stages of acquiring a legal education highly problematic. This demarcation is beginning to break down as the value of legal skills at the academic stage of training is being recognised in UK law schools. Teaching legal analysis alongside factual analysis, and then subjecting the outcomes of both processes to critical analysis, gives a more holistic approach to the theoretical and the practical study of law. In addition, legal education does not only address factual analysis and legal analysis; it critically addresses macro issues relating to the law as an institution, interrogating the development of substantive law, personnel, methods of reform, underpinning ideologies and prevailing attitudes towards legal philosophy.

2012 ◽  
pp. 212-212
Keyword(s):  
Legal Education ◽  
Real Life ◽  
Holistic Approach ◽  
University Education ◽  
Legal Analysis ◽  
Legal Principles ◽  
The Law ◽  
The Difference ◽  
Substantive Law ◽  
Law Reports

scholarly journals Court Judgement as a Jural Fact in Civil Law: Doctrinal Discourse and the Problem of Legal Formulations

2021 ◽  
pp. 240-262
Author(s):  
V. G. Golubtsov ◽  
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Modern Science ◽  
Legal Regulation ◽  
Public Law ◽  
Procedural Law ◽  
The One ◽  
The Right ◽  
Substantive Law ◽  
The Relationship

Introduction: the role of the court judgement that determines civil rights and obligations remains not completely perceived in civil law. In the modern science of civil law, no definite theoretical views on this subject have yet been formed, except for those that were formulated in the period when the science was actively discussing the very fact of referring court judgements to jural facts of civil law. In the article, we address this issue through reviewing, analyzing and generalizing the existing scientific views, with inter-disciplinary aspects also involved. The scope of study includes the disputable issues of the legislative definition of the court judgement seen as the basis for the commencement of civil rights and obligations and also the analysis of methodological positions significant for the research. Purpose: while taking the theory of modificatory claims as what is recognized in the modern doctrine of civil procedural law, to investigate the right-establishing force of the court judgement defined by the legislator as a jural fact of civil law. Methods: the methodological framework of the research is based on the general scientific method of scientific cognition, which reflects the relationship between the doctrine and law enforcement, as well as methods of dialectics, analysis, synthesis, analogy, functional, interdisciplinary, and system approaches. Results: the article proposes a system of concepts with the court judgment in its civil law meaning of a jural fact of substantive law lying at the core. Based on this system, we can state that the relationship between such concepts as the ‘court judgement’ and the ‘jural fact of substantive law’ is to a greater extent speculative. It is not sufficient to explain a court judgement as the basis for the commencement of civil law relations only based on the theory of procedural law, which divides all claims into declarative and constitutive ones. We argue that the concept ‘court judgement’ in its substantive meaning has a dual civil law function: (1) in the meaning of its right-restorative function – as a result of the protection of a violated civil right, and (2) as one of the grounds for the establishment of civil rights and obligations resulting from a private person’s initiative and the court authority. The right of the court to deliver right-establishing judgements that become one of the legal regulation elements within civil law, is an exception to the general civil law rule implying the discretionary method of regulation, according to which the parties determine their rights and obligations by mutual agreement. Following the analysis of the doctrinal views on the concept of the court judgement in its substantive meaning, which many authors consider to be the one not corresponding to its broader procedural meaning, we justify the position that there are no obvious grounds for diagnosticating the alleged contradiction between substantive and procedural legislation in terms of the logical scope of the ‘court judgement’ concept. It is more important to see the real legal meaning of this concept in the civil law reality, which involves a combination of the substantive law significance of a court judgement for establishing civil rights and obligations and the public law essence of this act, which is manifested not in private actions of the interested persons themselves but in unilateral actions of the court as a public law subject. We also formulated some methodological positions that could serve as theoretical guidelines for further research into the problem of the court judgement as one of the jural facts of civil law.

scholarly journals SUBSTANTIVE AND PROCEDURAL CRIMINAL LAW PROTECTION OF TRADE SECRETS

2020 ◽  
Author(s):  
Elena Andreeva ◽  
Keyword(s):  
Criminal Law ◽  
Trade Secrets ◽  
Legal Research ◽  
Procedural Law ◽  
Substantive Law

The article considers the essence of criminal aspects of the protection of trade secrets. The article comprises the following issues: Protection of trade secrets according to criminal substantive law; Protection of trade secrets according to criminal procedural law; Comparative legal research;

scholarly journals Limits of Autonomy in Criminal Law

Lex Russica ◽  
2019 ◽  
pp. 117-128
Author(s):  
V. V. Khilyuta
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Social Relations ◽  
Criminal Law ◽  
Regulatory Function ◽  
Judicial Interpretation ◽  
Economic Relations ◽  
The Law ◽  
The Right ◽  
Law Regulation

The article raises a question about the autonomy of criminal law. Various aspects of the doctrinal understanding of the limits of criminal law and its scope in relation to the positive branches of legislation are considered. The author in the context of the existence of the concept of autonomy (independence) of criminal law regulation questions the limits of judicial interpretation. In this context, antagonistic views on the limits of the mechanism of criminal law regulation are considered. Particular attention is given to the fundamental premise that the functional autonomy of criminal law generates not only a protective component, but also a regulatory function, and the law enforcement officer has the right to decide a particular case, based on concepts borrowed from other branches of law, but it can give them a different meaning and significance than the one they are endowed with in these positive (regulating specific social relations) sectors. The author comes to the conclusion that an autonomous interpretation of foreign industry features and concepts of regulatory legislation is scarcely credible. If a criminal law is to protect economic relations arising from the static and dynamic nature of objects of civil rights and their turnover from criminal encroachments, its subordination to the provisions of regulatory legislation is inevitable. The determinism here should be manifested precisely in accordance with the description of the signs of the crime to the provisions of regulatory norms. As a result, the autonomy of criminal law may create uncertainty about the content of the rule of law itself and allow for unlimited discretion in its enforcement. In this formulation of the issue, the autonomy of criminal law regulation is replaced by a very different approach — the autonomy of the judicial interpretation of criminal law. However, in this case there is a substitution of concepts, and the autonomy of criminal law is associated not so much with the regulatory function as with the law enforcement of criminal law.

Telekommunikationsüberwachung im Strafprozess gegen Verbände?

2021 ◽  
Author(s):  
Julia Nowak
Keyword(s):  
Criminal Law ◽  
Procedural Law ◽  
Substantive Law

The debate on the criminal law of associations has so far been dominated by questions of substantive law. This paper starts with procedural law and asks about the applicability of procedural norms and principles to the association. The aim is to contribute to the question of the association as a procedural subject. The basic theoretical questions of an association sanctions law and the fundamental procedural position of an association are discussed, especially with regard to the freedom from self-incrimination. On the basis of telecommunications surveillance, the problem areas that the association entails as a possible subject of proceedings are then examined. The author argues for a strong procedural position of the association.

Administration of German Criminal Justice Under Military Government

2013 ◽  
Author(s):  
Otto Kircheimer
Keyword(s):  
Criminal Justice ◽  
United Nations ◽  
Criminal Justice System ◽  
Criminal Law ◽  
Social Life ◽  
Military Government ◽  
Procedural Law ◽  
Anglo American ◽  
Substantive Law ◽  
Criminal Legislation

This chapter discusses the administration of criminal justice in Germany under military government. The report claims that German criminal law conflicts in many respects not only with the theories and practices for which German criminal law had previously stood, but also with the theories which, in Anglo-American countries, are traditionally linked to the functions of criminal law. This conflict alone does not suffice to impose upon military government a duty to revise or revoke criminal legislation. The chapter considers changes in the German criminal justice system which are necessary not only for the security of the occupying army and the orderly development of German political and social life, but also for the execution of the policies and purposes of the United Nations. It also makes a number of recommendations with respect to military government's approach to criminal law, substantive law, procedural law, problems of jurisdiction, amnesty problems, prosecution of Nazi offenders against German citizens, and problems of administration.

scholarly journals MENAKAR RASA KEADILAN PADA PUTUSAN HAKIM PERDATA TERHADAP PIHAK KETIGA YANG BUKAN PIHAK BERDASARKAN PERSPEKTIF NEGARA HUKUM PANCASILA

2017 ◽  
Vol 6 (3) ◽  
pp. 361
Author(s):  
Abdul Hakim
Keyword(s):  
Subject Matter ◽  
Social Life ◽  
Freedom Of Contract ◽  
Authoritative Text ◽  
Procedural Law ◽  
Procedure Code ◽  
The Subject ◽  
The Law ◽  
Sense Of Justice

Law is a set of words that are systematically linking an authoritative text, according to Gustav Radbruch, it should contain three (3) elements, namely fairness, certainty and expediency. The application of the authoritative text in social life was an absolute authority of a judge in resolving a civil case. The judge, in the checking-hearing-deciding a case, not only expected to return the case to the original state (restitutio in integrum) before the advent of the dispute, but should attempt made every effort to not create new disputes or disputes derived from the subject matter examined. Therefore, it becomes very important role of the paradigm for a judge in deciding the case in order to fulfill a sense of justice. Therefore, deciding the case in a precise sense of justice will be a judge most important role. Nowadays, the meaning of "justice" in Civil Procedure Code only limited to the authority of the power of the parties bound by the principle of consensualism and the principle of freedom of contract. Therefore, based on the Law Paradigm (Philosophy) of Pancasila, Judge as an interpreter, in defining and applying the law, legal science must have the ability to deconstruct and reconstruct an authoritative text based paradigm embraced by a nation.Keywords: the principle of consensualism, justice, pancasila, paradigm, civil procedural law

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