Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

2020 ◽  
Vol 45 (2-3) ◽  
pp. 200-216
Author(s):  
Marek Zirk-Sadowski
Keyword(s):  
System Theory ◽  
Legal System ◽  
Legal Theory ◽  
Analytical Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Legal Philosopher ◽  
Application Of Law ◽  
Theory Of Law ◽  
Law Making

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

Kelsen on legal interpretation

Legal Studies ◽  
1990 ◽  
Vol 10 (2) ◽  
pp. 136-152 ◽  
Author(s):  
Stanley L. Paulson
Keyword(s):  
Legal Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Pure Theory ◽  
Half Century ◽  
Legal Philosopher ◽  
Theory Of Law

A number of writers have invited attention to the fact that Kelsen, in a long and extraordinarily productive career, gave very little attention to questions of legal interpretation. Kelsen's younger colleague in the Vienna School of Legal Theory, Fritz Schreier, himself a legal philosopher of note, remarked in 1929 that the Vienna School had neglected interpretation. Michael Thaler made the same point a half century later, writing that Kelsen devoted himself ‘entirely to an elucidation of the object of interpretation’, that is to say, the legal norm itself, without providing any details on ‘ how interpretation is to be done’. Other recent writers go further: Klaus Adomeit dismisses Kelsen's theory of interpretation as ‘methodological nihilism’ Günther Winkler writes that Kelsen’s theory, although ‘simple’, is both ‘mistaken and misleading’. Indeed, most recent writers who have examined the Pure Theory of Law on questions of legal interpretation take a dim view of Kelsen's work in the field.

scholarly journals The Doctrine of Legal Regulation: Approaches to Understanding

2021 ◽  
pp. 65-72
Author(s):  
Tetiana Tarakhonych
Keyword(s):  
Law Enforcement ◽  
Public Relations ◽  
Scientific Knowledge ◽  
Legal Regulation ◽  
Legal Interpretation ◽  
Legal Doctrine ◽  
Close Cooperation ◽  
Theory Of Law ◽  
Definition Of ◽  
Law Making

The article describes the scientific approaches to understanding of the doctrine, the legal doctrine, and the legal regulation doctrine. The article states that the public relations’ reformation, the current needs of legal practice require fundamentally new approaches to legal doctrine not only as one of the sources of law, but also as an important component of the process of law-making, law enforcement and legal interpretation. The research focuses on the fact that the legal doctrine in general and the doctrine of legal regulation in particular belongs to a key position both in the general and theoretical legal science and in the science of industry direction. It is emphasized that theorists of law analyze the legal doctrine due to the application of the methodological potential of philosophy and theory of law through the prism of the interaction of legal doctrine and the doctrine of legal regulation. The author provides the definition of the legal regulation’s doctrine as a component of legal doctrine based on previous knowledge and is the result of fundamental scientific research, a set of scientific ideas, views, concepts, theories recognized by the scientific community, that can be applied in law-making, law-enforcement and legal interpretation activities. The important attention is paid to the peculiarities of the legal regulation’s doctrine. It is aimed at a certain object of knowledge; is a certain set of ideas, views, principles of scientific knowledge, concepts, theories, etc.; requires a set of generalizations; is formed under the influence of needs and social interests; has a communicative, informational orientation; is in close cooperation with law-making, law-enforcement and legal interpretation activities; has a certain structure, cognitive and strong-willed components, is formed in society and the state by generalization of scientific knowledge, etc. The research defines the factors that influence the formation and development of the doctrine of legal regulation. They are divided into factors of both objective and subjective nature. The particular attention is paid to the main functions of the doctrine of legal regulation, namely: cognitive, informational, prognostic, communication, etc.

scholarly journals Theory of lawmaking in classical general legal theory and in the anthropological approach of law

2019 ◽  
Vol 2019 (3) ◽  
pp. 43-48
Author(s):  
Вадим Павлов ◽  
Vadim Pavlov
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Theory And Practice ◽  
Soviet Period ◽  
Modern Theory ◽  
The Rule Of Law ◽  
Regulatory Impact ◽  
Anthropological Approach ◽  
Theory Of Law ◽  
Law Making

the article deals with the development of the modern theory of law-making process. The main changes that took place in the sphere of law-making in the post-Soviet period are analyzed. The importance of the use of such a modern law-making tool as regulatory impact assessment is considered. The analysis of the process of lawmaking from the perspective of anthropology of law is offered. The rule of law and its normativity in the anthropological approach do not precisely express the essence of law, but are only its substantive basis. The essence of law is necessarily expressed with the participation of a person in law, a subject involved in legal interaction. In addition to the rule of law and human rights in law, the third element of legal reality is significant – the fact of legal life, which reveals both the normative properties of the legal system, and reveals the legal properties of a person in law. Thus, in the anthropological approach, the rule of law and the normativity of law in comparison with the classical theory of law-making acquire a new meaning, characterized by the fact that in a General sense it can be called anthropologization of law, the acquisition of its human dimension. On this basis, the theory and practice of lawmaking should focus on the development of the doctrine of the interpretation of law, as well as on the practice of its implementation.

scholarly journals Fiume és a nemzetiségi egyenjogúság tárgyában hozott 1868. évi XLIV. törvénycikk

2020 ◽  
Vol 3 (2) ◽  
pp. 107-123
Author(s):  
Imre Juhász
Keyword(s):  
Legal System ◽  
Legal History ◽  
Legal Theory ◽  
Legal Interpretation ◽  
Port City ◽  
The City ◽  
Descriptive Method

Fiume (current official name: Rijeka) became part of Hungary in 1779 as a “corpus separatum”. At the time of the so-called provision, after 1870, the legal system of the port city developed in a special way. Although the Hungarian government took over the administration of the city again, this did not mean the automatic reception and application of the entire Hungarian legal system. Some Hungarian laws were not later enacted in Fiume. The article prepared on the basis of the conference lecture in Cluj-Napoca (Sapientia Hungarian University of Transylvania) intends to review the issues of legal interpretation of the applicability of Act XLIV of 1868 on National Equality by using descriptive method, taking into account legal history and legal theory aspects.

Applicability of Legal Norms

2004 ◽  
Vol 17 (2) ◽  
pp. 337-359 ◽  
Author(s):  
Pablo E. Navarro ◽  
Claudina Orunesu ◽  
Jorge L. Rodríguez ◽  
Germán Sucar
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Norm ◽  
Careful Examination ◽  
Sufficient Condition ◽  
Legal Norms ◽  
Legal Duty ◽  
The Law ◽  
Conceptual Link ◽  
Basic Intuition

It is a basic intuition about the law that organs of adjudication ought to justify their decisions by recourse to the appropriate applicable norms. Nevertheless, a sound reconstruction of the applicability of legal norms has been largely ignored in contemporary legal theory. Different connections between applicable norms and cases are explored in this paper, and a distinction is suggested between internal and external applicability. A legal norm is internally applicable to the cases regulated by its scope of validity (i.e. by its terms the norm fits the facts of the case), and is externally applicable when it has to be used in a certain case as a justification of an institutional decision (i.e. the presiding judge has a legal duty to apply it to the case). A usual claim holds that all and only valid norms which, by their terms, apply to the case at hand must be applied in determining the outcome of the case. However, we try to demonstrate that a valid legal norm that exists as a member in a legal system may be internally applicable to a case and yet not be externally applicable to it. It also may occur that judges sometimes have the legal duty to apply norms that are not part of their own legal system. Consequently, the relations between internal and external applicability and between external applicability and validity deserve a careful examination. In these pages we hold that, though validity plus internal applicability is neither a necessary nor a sufficient condition of the duty to apply a legal norm, there is a complex conceptual link between external applicability and the systematic reconstruction of the law.

scholarly journals Problems of Explication of Concepts of Validity and Efficacy of Law in E. Bulygin’s Legal Theory

2019 ◽  
Vol 14 (4) ◽  
pp. 81-107
Keyword(s):  
Legal Theory ◽  
Scientific Work ◽  
Legal Norm ◽  
Dispositional Property ◽  
Judicial Decisions ◽  
Binding Force ◽  
Traditional Notion ◽  
Limited Application ◽  
Technical Sense ◽  
Theory Of Law

Throughout his scientific work, the Argentine lawyer E. Bulygin re-peatedly analyzed the problem of the validity and efficacy of law. Based on the for-mu lations of H. Kelsen’s pure theory of law, E. Bulygin sought to explicate the con-cepts of legal validity and efficacy, i.e. to replace them with new more accurate ones. In the 1965 paper "The Concept of Validity" Bulygin entered into a polemic with H. Kelsen and A. Ross and formulated the concept of efficacy as a dispositional property of the legal norm reflecting its justiciability. Subsequently, however, the Argentine lawyer clarified his terminology and distinguished between the dispositional concept of efficacy (law in force) and the traditional notion of efficacy because of the conclusion on the expediency of using the old concept of efficacy along with the new one defined through justiciability. But the concept of efficacy as justiciability formulated by E. Bulygin faced a number of theoretical difficulties.In the 1966 paper "Judicial Decisions and the Creation of Law" E. Bulygin made an attempt to explicate the concept of validity. E. Bulygin points to three concepts designed to replace the traditional notion of validity: the validity of the norm in the system sense, the binding force of the norm and the existence of the norm. Each of these specified concepts was developed in theoretical constructions of the Argentine lawyer, however their using also generates the problems. Alternatively, the development of the notion of validity of law in the system sense can be considered "definitive" concept of validity proposed by E. Bulygin in collaboration with K.E. Alchourron in the monograph "Normative systems" (1971). However, this concept has significant differences from the originally formulated and has a very limited application. The concept of the existence of the norm does not receive independent development as a variant of the explication of the concept of the validity of law. The concept of the binding force of law, on the contrary, is divided by the Argentine jurist into two fundamentally different concepts — binding force in the metaphysical sense and binding force in the technical sense, which later E. Bulygin called "applicability". The concept of applicability was used by the Argentine legal philosopher to solve a number of problems of H. Kelsen’s theory, however the concept of applicability itself leads to paradoxical consequences.On the whole E. Bulygin’s project of explicating of the concepts of validity and efficacy of the law didn’t result in replacing them with series of new more precise concepts although refined in some way their meaning.

scholarly journals TREND TO APPROVAL OF THE IDEA OF JUDICIAL LAW MAKING IN PROCEDURAL LEGISLATION AND JUDICIAL PRACTICE

2021 ◽  
Vol 6(72) (3) ◽  
pp. 84-89
Author(s):  
N. N. Lukasheva
Keyword(s):  
Legal System ◽  
Legal Regulation ◽  
Legal Interpretation ◽  
Highly Qualified ◽  
Judicial Practice ◽  
The Law ◽  
Normative Value ◽  
Law Making

The article points out the lack of uniformity in the legal regulation of the issues under study, namely, problems of the abolition of judicial acts, as well as the unjustified differentiation of legal regulation in various procedural codes, in which, to one degree or another, the role of judicial legal interpretation as a source of law is determined. It points out the need to overcome the negative practice of giving normative value to judicial practice, which, as a result, acquires legislative consolidation, and by explanation of the highest judicial instances practice becomes higher than the law. The necessity of determining the limits of the law-making role of the courts is substantiated, as well as the need to amend legislative acts, proceeding from the legal system, in order to give more certainty to legislative provisions, unification of legal regulation in content and form. The legislator needs to introduce certainty into the relevant legal relations, which should not consist in recognizing the juridical obligation of legal positions developed by the highest judicial instances. The credibility of these legal positions should not go beyond recognition by their authoritative opinion of the participants of the relevant collegial judicial bodies – highly qualified professionals.

Penerapan Hukum Wakaf Uang di Indonesia Perspektif Legal System Theory

2018 ◽  
Vol 11 (1) ◽  
pp. 79-92 ◽  
Author(s):  
Masdar Masdar
Keyword(s):  
System Theory ◽  
Law Enforcement ◽  
Legal System ◽  
Legal Culture ◽  
Point Of View ◽  
Law Enforcement Agencies ◽  
Muslim Society ◽  
The Law ◽  
The Government

Cash waqf in Indonesia has been long enough implemented based on some rules enacted by government and other rules defined by The Waqf Board of Indonesia (BWI). However, the implementation of cash waqf has not reached the level of success. Therefore, this article studies the application of cash waqf law in Indonesia according to Friedman’s legal system theory. The legal system theory of Friedman firstly looks at the substance of the law, which is the rules or regulations; and secondly it examines the structure of the law, encompassing the law enforcement agencies, such as judge, prosecutor, police and legal counselors. And lastly the theory examines the element of legal culture, which is a response from Muslim society. The first two examinations indicate that there is nothing to be a problem. But from the last examination there is a problem regarding the trust from Muslim society. From the legal culture point of view, the implementation of cash waqf by the government, which is performed by BWI, needs attracting society’s credentials in order to improve and maximize the performance of cash waqf in Indonesia.

Pragmatic Reconstruction in Jurisprudence: Features of a Realistic Legal Theory

2021 ◽  
Vol 34 (1) ◽  
pp. 171-202
Author(s):  
Brian Z. Tamanaha
Keyword(s):  
Twentieth Century ◽  
Coercive Force ◽  
Social Life ◽  
Conceptual Analysis ◽  
Legal Theory ◽  
A Priori ◽  
Planning System ◽  
Universal Feature ◽  
Moral Problems ◽  
Theory Of Law

A century ago the pragmatists called for reconstruction in philosophy. Philosophy at the time was occupied with conceptual analysis, abstractions, a priori analysis, and the pursuit of necessary, universal truths. Pragmatists argued that philosophy instead should center on the pressing problems of the day, which requires theorists to pay attention to social complexity, variation, change, power, consequences, and other concrete aspects of social life. The parallels between philosophy then and jurisprudence today are striking, as I show, calling for a pragmatism-informed theory of law within contemporary jurisprudence. In the wake of H.L.A. Hart’s mid-century turn to conceptual analysis, “during the course of the twentieth century, the boundaries of jurisprudential inquiry were progressively narrowed.”1 Jurisprudence today is dominated by legal philosophers engaged in conceptual analysis built on intuitions, seeking to identify essential features and timeless truths about law. In the pursuit of these objectives, they detach law from its social and historical moorings, they ignore variation and change, they drastically reduce law to a singular phenomenon—like a coercive planning system for difficult moral problems2—and they deny that coercive force is a universal feature of law, among other ways in which they depart from the reality of law; a few prominent jurisprudents even proffer arguments that invoke aliens or societies of angels.

Kelsen – Which Kelsen? A Reapplication of the Pure Theory to International Law

2009 ◽  
Vol 22 (2) ◽  
pp. 225-249 ◽  
Author(s):  
JÖRG KAMMERHOFER
Keyword(s):  
International Law ◽  
Legal Theory ◽  
Pure Theory ◽  
Municipal Law ◽  
Hans Kelsen ◽  
Theory Of Law ◽  
The Right ◽  
Relationship Of ◽  
The Relationship ◽  
Legal Theorist

AbstractHans Kelsen is known both as a legal theorist and as an international lawyer. This article shows that his theory of international law is an integral part of the Kelsenian Pure Theory of Law. Two areas of international law are analysed: first, Kelsen's coercive order paradigm and its relationship to the bellum iustum doctrine; second, the Kelsenian notion of the unity of all law vis-à-vis theories of the relationship of international and municipal law. In a second step, the results of Kelsenian general legal theory of the late period – as interpreted and developed by the present author – are reapplied to selected doctrines of international law. Thus is the coercive order paradigm resolved, the unity of law dissolved, and the UN Charter reinterpreted to show that the concretization of norms as positive international law cannot be unmade by a scholarship usurping the right to make law.

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