Formalism and Realism in Private Law

2020 ◽  
pp. 464-480
Author(s):  
Emily Sherwin
Keyword(s):  
Vital Role ◽  
Point Of View ◽  
Private Law ◽  
Reasons For Action ◽  
Legal Doctrine ◽  
Legal Realism ◽  
Judicial Decision Making ◽  
Private Rights ◽  
Legal Concepts

One feature of the renewed interest in private law is a willingness to study legal doctrine and to recognize the role of doctrine in judicial decision-making. In this respect, New Private Law stands in opposition to Legal Realism, which denies or at least minimizes the influence of doctrine on adjudication. New Private Law assumes that legal concepts, categories, and rules play a vital role in defining legal relations between parties interacting with one another. Yet even those who are open to the idea that doctrine plays a role in adjudication of private rights and duties tend to reject “formalistic” approaches to legal doctrine. The chapter offers a partial defense of serious, deductive formalism. From the point of view of a legal authority or an individual who imposes a rule on herself, deductive formalism is practically rational, even if it sometimes produces results that are wrong when judged by the purposes of the rule or the rule follower’s reasons for action. The chapter then discusses different approaches to problem of bad results in particular cases and suggests that the traditional method of equitable intervention has advantages over the Realist aversion to determinate rules.

scholarly journals THE PROBLEM OF NARRATION IN NOTES FROM A DEAD HOUSE BY FYODOR DOSTOEVSKY

2021 ◽  
Vol 19 (1) ◽  
pp. 221-238
Author(s):  
Tamara Batalova
Keyword(s):  
Sense Of Self ◽  
Self Esteem ◽  
Vital Role ◽  
Point Of View ◽  
Christian Faith ◽  
Fyodor Dostoevsky ◽  
Theatrical Performance ◽  
Essential Idea ◽  
The Dead

Within the framework of Pavel Medvedev’s sociological poetics, the article identifies and studies the features of the narrative in Fyodor Dostoevsky’s Notes from a Dead House, and examines the role of these features in expressing the key idea of this novel, namely the desire of convicts for freedom, for “resurrection from the dead”. From this point of view, the author examines the significance of the narrator’s duality (Goryanchikov and Goryanchikov-Dostoevsky) and the juxtaposition of the characters in the narrative (positive and negative). He also analyzes the compositional function of the XI chapter of the first part of Notes from a Dead House, “Presentation”, in the plot. The Christian faith plays the vital role in the expression of the essential idea of the work. An open-minded attitude to people, a friendly, Christian approach towards them is a distinctive feature of Goryanchikov-Dostoevsky and all the positive characters in the book. Inspired by the celebration of the Nativity of Christ, the convicts staged a theatrical performance, which alters the moral state of both the actors and the audience, fortifies their sense of self-esteem required to resist the prison orders that “deaden” people, and strengthens the prisoners’ desire for freedom, for “resurrection from the dead”. The article concludes that Notes from a Dead House is the beginning of aesthetic and artistic changes that manifested themselves in Dostoevsky’s post-prison works.

A.L. MAKOVSKY AND THE REVIVAL OF RUSSIAN PRIVATE LAW

2021 ◽  
Vol 20 (6) ◽  
pp. 8-17
Author(s):  
E.A. SUKHANOV
Keyword(s):  
Intellectual Property ◽  
Russian Federation ◽  
Civil Law ◽  
Civil Code ◽  
Point Of View ◽  
Private Law ◽  
Public Interests ◽  
Private And Public ◽  
The Russian Federation

The article highlights the role of prof. A.L. Makovsky in the creation of the new Civil Code of the Russian Federation of 1994–2006, as well as in the organization of the practice of its application and the development of the Concept for the Development of Civil Legislation of the Russian Federation in 2009. Special attention is paid to the activities of A.L. Makovsky on the preparation of the Fourth Part of the Civil Code of the Russian Federation and the concept of intellectual rights enshrined by it, opposing the traditional archaic concept of “intellectual property”. The importance of the need to increase the attention of civil law to the issue of protecting the rights and interests of citizens and other weakest participants in civil legal relations in their opposition to the interests of large companies striving to take a privileged position in property turnover is shown. From this point of view, the author substantiates the need for a significant adjustment in the understanding of the balance of private and public interests, which is the basis of civil law regulation.

DYNAMICS OF A DELAYED EPIDEMIOLOGICAL MODEL WITH NONLINEAR INCIDENCE: THE ROLE OF INFECTED INCIDENCE FRACTION

2005 ◽  
Vol 13 (04) ◽  
pp. 341-361 ◽  
Author(s):  
B. MUKHOPADHYAY ◽  
R. BHATTACHARYYA
Keyword(s):  
Numerical Simulations ◽  
Incidence Rate ◽  
Recovery Time ◽  
Dynamical Behavior ◽  
Vital Role ◽  
Point Of View ◽  
Epidemiological Model ◽  
Discrete Form ◽  
Fraction I

We present and analyze an epidemiological model containing Susceptible (S(t)) and Infected (I(t)) populations. The incidence rate is assumed to be nonlinear in the infected fraction (Ip(t)) as well as the susceptible fraction (Sq(t)). The dynamical behavior of the system is investigated from the point of view of stability and bifurcation. To model the recovery time of infected populations, a recovery delay, both in distributed and discrete form is introduced. In all the cases, it is shown that the infected incidence fraction p plays a vital role in controlling the dynamical behavior of the system. Numerical simulations are performed to justify the analytical findings.

scholarly journals The Role of Architectural Awards for Enhancing Heritage-Based Graduation Projects Analytical Study of Tamayouz Excellence Award for Iraqi Students

2020 ◽  
Vol 7 (3) ◽  
pp. 9-24
Author(s):  
Nahith Abdullah ◽  
Keyword(s):  
Cultural Heritage ◽  
Cultural Values ◽  
Final Stage ◽  
Social Life ◽  
Deep Structure ◽  
Vital Role ◽  
Point Of View ◽  
Visual Elements ◽  
Contemporary Architecture

The cultural heritage plays an important role in determining the identity of any community, and the architectural output is at the forefront of this subject since it‟s the direct visual product of a cumulative result of the experience led by the communities within a given time and place which is compatible with the cultural structure and social life. From this point of view, the academic curriculum in many architectural schools tries to enhance the students‟ vision for the cultural heritage by introducing that heritage as a main source of inspiration in the creation of their design product. This comes in various ways, most of which are based on the employing of visual elements and external details showing their impact on the facades of the design projects as a blind repetition of that legacy, while some schools are investigating more deeply the ideology behind the production of that legacy and direct their students to study the deep structure of that heritage and reproduce it differently from previous to more contemporary architecture. The process of evaluating student‟s architectural products supports those approaches of inspiring heritage-based projects as those processes considered as an evaluating means for the outputs. One of the most important sources for those evaluations were students‟ project competitions and awards, which play a vital role in implicitly inspiring the cultural values of that heritage. Tamayouz Excellence Award for Graduation Projects stands on the head of these awards for the final stage output of Iraqi students. This paper aims to investigate the extent to which the academic output of the students' products which were chosen as a shortlist by (Tamayouz Excellence Award for Iraqi Students) can reflect the iconic, canonic, pragmatic, and analogy depiction of that heritage, and thus its ability to create a product with a deep local cultural vision. This is done by examining those output of several Iraqi architectural final stage students by analyzing those projects according to the structural elements that formulate their concepts, to point out those trends that help the promoting out values of identity within their works. The research found that the projects which inspire the heritage were not the most likely to run for the final positions. The reason for this lies in the superficial approach in which these projects dealt with the heritage values, and the local culture has been limited to the inspiration of the just formal elements without going deeply into the intellectual depth of that heritage

scholarly journals The German History of Concepts and the History of Political and Legal Doctrines: Facets of Interaction

Legal Concept ◽  
2021 ◽  
pp. 55-62
Author(s):  
Kirill Korovin
Keyword(s):  
Point Of View ◽  
German History ◽  
Conceptual Approach ◽  
Legal Doctrine ◽  
Legal Science ◽  
History Of ◽  
History Of Concepts ◽  
Legal Concepts ◽  
Constituent Elements

the German history of concepts became popular after the translation into Russian of some articles from “The Historical Dictionary of Socio-Political Language in Germany”. This event is remarkable for legal science, since legal concepts are of particular importance for both the legislator and legal scientists when developing legal doctrine. The purpose of the paper is to apply a historical and conceptual approach to the study of state-legal phenomena in the history of political and legal doctrines. Methods: the methodological basis of this study is a systematic approach that allows to structure the constituent elements of the German history of concepts, as well as a structural and functional one, thanks to which the application of specific elements in practice was shown. Results: as a result of the analysis of the German experience of studying concepts, the author made conclusions that reflect the possibility of its use in law. First of all, the classification of concepts used in the dictionary is important. It allows you to structure and systematize the concepts used in the political and legal doctrines. The processes of transformation of concepts described methodologically by the Germans can be analyzed by analogy in Russian historical and legal science. The context of the emergence and evolution of the concepts reflects the fundamental changes in society and the state, so its description is necessary to explain the features of legal concepts. Conclusions: the adaptation of historical concepts with the help of modern legal language to the terminological apparatus of the theory of state and law is possible through the diachronic principle. The linguistic basis of the German dictionary is certainly interesting for lawyers from the point of view that the distinction between terms and concepts contributes to the improvement of legal techniques. Thus, the German history of concepts is largely interrelated with the history of political and legal doctrines, and further development of this issue is required.

scholarly journals A feminist analysis of child neglect cases from the Brazilian Superior Court of Justice

2020 ◽  
Vol 16 (1) ◽  
Author(s):  
Flavia Portella Püschel
Keyword(s):  
Child Neglect ◽  
Life Experiences ◽  
Negative Impact ◽  
Family Relations ◽  
Point Of View ◽  
Woman Question ◽  
Legal Doctrine ◽  
Court Of Justice ◽  
Gender Neutral ◽  
Legal Concepts

Abstract This article analyzes the opinions of judges of the Brazilian Superior Court of Justice (STJ) in child neglect cases from a feminist perspective by “asking the woman question” to identify implicit male bias in legal concepts and standards that are apparently gender neutral. Several sexist arguments can be found both in opinions against awarding damages for child neglect and in opinions in favor of it. Sexist bias is shown in the disregard of legal doctrine, as well as of the ambivalent character of family relations and their hierarchical structure. This bias is further expressed in the devaluation of women’s interests and life experiences, stereotyping, problems of logical reasoning as well as in the disregard of statutory rules. The article concludes that the STJ was unable to take into account the point of view of women and the circumstances in which child neglect actually takes place in Brazilian society today. The court developed a concept of harm that, although apparently gender neutral, is based on discriminatory reasons and has greater negative impact on women than on men.

scholarly journals Understanding Human Dignity

2013 ◽  
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
The State ◽  
Point Of View ◽  
Social Solidarity ◽  
Shared Meaning ◽  
Judicial Decision Making ◽  
Original Essays ◽  
The Relationship

The concept of human dignity has become central to political philosophy and legal discourse on human rights, but it remains enigmatic. Understanding Human Dignity is a book of original essays by a multi-disciplinary group of historians, legal academics, judges, political scientists, theologians, and philosophers, which aims to debate a broad range of current approaches to how to understand the concept. Some of the main issues considered include fundamental theoretical questions: Is there a minimum core to the meaning of human dignity? Is a person’s human dignity to be assessed subjectively from his or her point of view, or ‘objectively’? Can human dignity be understood in purely secular terms? Can there be a shared meaning of human dignity where there is religious and ideological pluralism? What ontological claims are implied by appeals to human dignity? Other questions are more directed at the implications of dignity for relations between individuals, and between individuals and the state: What are the implications of human dignity for the ways in which we should behave towards each other? What are its implications for the ways in which the state should treat those who fall under its authority? An important set of questions posed considers specifically the relationship between human dignity, human rights, and other values: Is human dignity more appropriately seen as attaching to some human rights rather than others? What is the relationship between human dignity and other values and principles connected with rights, such as autonomy, freedom, equality, social solidarity, and identity? What is the weight and status of human dignity? Does human dignity have a status superior to that of other values? Is it absolute, or can it be balanced against other values? Does human dignity essentially serve community or individual goals? Can it also serve moralistic and paternalistic goals? Is human dignity necessarily an emancipatory idea? Is it rights-supporting or rights-constraining? Also considered is how, if at all, the concept of human dignity helps us to deal with claims made in relation to several issues that are among the most divisive current political and social questions. Does dignity apply only to sentient humans, or can it apply to animals, dead humans, and human foetuses? What is the relation between the idea of dignity and what appears to be voluntary self-degradation (for example, in some instances of prostitution and pornography)? How far, if at all, can a person waive his or her human dignity? Does human dignity determine the boundaries of religious pluralism? A further set of questions considered are more institutional, or related to the relationship between disciplines: How appropriate is the use of the concept of human dignity for judicial decision-making? What is the role of courts and legal authorities in developing and elaborating the concept of human dignity? What role, if any, should human dignity play in adjudicating conflicts of human rights, philosophical and legal?

Purely Formal Wrongs

2020 ◽  
pp. 19-40
Author(s):  
Liam Murphy
Keyword(s):  
Good Reason ◽  
Point Of View ◽  
Moral Justification ◽  
Private Law ◽  
Difficult Question ◽  
Private Rights ◽  
Moral Grounding

This chapter cautions against the moral grounding of private rights and duties and, in turn, private law's response to wrongs. The argument is framed as a rebuke to those who suppose that private law must be interpreted from an internal, rather than instrumental, point of view. According to this chapter, interpretive theorists assume that the deontic structure of private law implies deontological moral grounding. But it argues that there is no good reason to think this, and, indeed, there are plenty of reasons to think otherwise. Private law may be formally deontic but nevertheless have instrumental moral justification. The interesting and difficult question is what to make, normatively, of the deontic structure of private law. Against the view that civil wrongs are moral wrongs, this chapter asserts that they are purely formal.

Les rôles religieux dans le contexte multi-racial sud-africain : le profil du ministère dans le calvinisme et le catholicisme

1972 ◽  
Vol 19 (1) ◽  
pp. 29-47
Author(s):  
Edward Higgins ◽  
André Rousseau
Keyword(s):  
Role Models ◽  
Vital Role ◽  
Point Of View ◽  
Dutch Reformed ◽  
Catholic Priest ◽  
Reformed Church ◽  
Nederduitse Gereformeerde Kerk ◽  
The Status ◽  
Points Of View

In the first part of the article the author describes the position of Calvinism and Catholicism in South Africa from the historical, demographic and socio-cultural points of view. Following this there is a report, with comments, on two studies carried out on religious roles in these two Churches. The first of these studies was conducted by C.J. Alant on the role of the pastor in the Dutch Reformed Church (Nederduitse Gereformeerde Kerk) and the second by J. Kiernan on the Catholic priest. Among the most outstanding aspects of these two studies the author emphasises that in both Churches the roles of religious still are closely linked with their functions relating to the sacraments and worship. He emphasises that, as a result, these role models tend to maintain the status quo ; from the point of view of non-involvement in politics and privatisation of religion the Catholic priest may be able to play a more vital role than the Calvinist pastor.

scholarly journals The role of academic leaders in activating the social participation in the Imam Abdulrahman Bin Faisal University: دور القيادات الأكاديمية في تفعيل المشاركة المجتمعية في جامعة الإمام عبد الرحمن بن فيصل

2019 ◽  
Vol 3 (31) ◽  
Author(s):  
Esra'a Jassim Hamad Al-Ghunaim,  Ahmed Suleiman Mohammed Ban
Keyword(s):  
Public Relations ◽  
Social Participation ◽  
Vital Role ◽  
Point Of View ◽  
Academic Leaders ◽  
Medical Centers ◽  
Academic Track ◽  
The Social ◽  
The University

  This study aims to uncover the role of academic leaders in activating the social participation in the Imam Abdulrahman Bin Faisal University and is conducted from the student's point of view and to identify the significance of differences according to varying criteria (gender, academic track, and the level of study.(To achieve this, the researcher used the descriptive, analytical approach and constructed the questionnaire as a data collection tool. The questionnaire was composed of (50) items covering five domains: (Partnerships with families, Community service, Community resource development, Volunteering, Public relations and communication within communities). The study involved the entire student population consisting of both male and female students attending the Imam Abdulrahman Bin Faisal University. Of approximately (36,820) students, a random sample of (1841) students was generated and represent 5%, and the data was processed statistically by SPSS. The study reached several results, the most significant of which are: • Members of the sample study rated the role of academic leaders in activating community participation with a low level in all fields of study. 2.There are statistically significant differences between the views of the sample study in all areas due to gender variables favoring females. There are also differences according to the academic track which favors the scientific colleges. In light of the results, the researcher advises the following recommendations: - Initiate organizing field visits by students to schools, companies, associations and medical centers. Arranging tours to the directors of some companies and institutions of the university may play a vital role in supporting different disciplines respective to their nature. - Issue regulations for voluntary community work at the university supported by a list of cooperating and related authorities, incentives, violations, and penalties.    

Sign in / Sign up

Export Citation Format

Share Document