8. Miranda, Dickerson, and Jewish Legal Theory: The Constitutional Rule in a Comparative Analytical Framework

Abstract At the core of Hohfeld's contribution to legal theory is a conceptual framework for the analysis of the legal positions occupied by agents in intersubjective legal relations. Hohfeld presented a system of eight “fundamental” concepts relying on notions of opposition and correlation. Throughout the years, a number of authors have followed Hohfeld in applying the notion of opposition to analyze legal concepts. Many of these authors have accounted for Hohfeld's theory in direct analogy with the standard deontic hexagon. This paper reviews some of these accounts and extends them employing recent developments from opposition theory. In particular, we are able to extend application of opposition theory to an open conception of the law. We also account for the implications of abandoning the assumption of conflict-freedom and admitting seemingly conflicting legal positions. This enables a fuller analysis of Hohfeld's conceptual analytical framework. We also offer a novel analysis of Hohfeld's power positions.

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Wolność jako zasada neokonstytucjonalna

Filozofia Publiczna i Edukacja Demokratyczna ◽

10.14746/fped.2018.7.1.7 ◽

2018 ◽

Vol 7 (1) ◽

pp. 161-180

Author(s):

Justyna Holocher

Keyword(s):

Rule Of Law ◽

Legal Theory ◽

Law And Order ◽

Judicial Interpretation ◽

Constitutional Rule ◽

Moral Principles ◽

Legislative Authority ◽

The Law ◽

The Individual ◽

Legislative Measures

The liberal principal in dubio pro libertate is the philosophical foundation of the theory of constitutional rule of law and constitutes an incorporation of moral principles into the law and order. It is perceived as a circumstance to confirm the legitimacy for the thesis of passing from rule of law to the constitutional rule of law on the philosophical and dogmatic planes. It influences the process of constitutionalization, and especially the rules governing the judicial interpretation, forming thus the legal theory of interpretation built upon the argumentative nature of the law and its weight-based application which is essentially a matter of selecting the rule applicable as the parameter of control of constitutionality. It bolsters up constitutionalism conceived as a set of legislative measures aimed at limiting the legislative authority and jurisprudence by attaching a particular importance to the liberty arguments whose value will be eventually referred to the good of the individual.

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Utilizing Systems Theory Insights and Reflexive Law to Negotiate the “Collision between… Un-connecting Worlds” in Family Law

Journal of Law Religion and State ◽

10.1163/22124810-2021j004 ◽

2021 ◽

Vol 9 (2-3) ◽

pp. 212-243

Author(s):

Tristan Cummings

Keyword(s):

Systems Theory ◽

Social Relations ◽

Final Section ◽

Legal Theory ◽

Family Law ◽

Theoretical Perspective ◽

Analytical Framework ◽

General Application ◽

The Relationship

Abstract This article defends an analytical framework based on systems theory, reflexive law, and Teubner’s regulatory trilemma. J v B exemplifies the numerous overlapping social relations, and forms a case study on the relationship between the State, community, and minority religious individuals, and on how this relationship can break down from the systems theoretical perspective. The article uses this case as a testing ground for a modified systems theoretical approach, treating this conflict between family law and religion as a regulatory problem. Although it centers on English family law, the article should be read as a piece of normative legal theory of general application. In the final section, it explores reflexive secularity and how this may apply in cases where law and religion interact, such as J v B.

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Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

10.26686/wgtn.16958563 ◽

2021 ◽

Author(s):

◽

Luke Richard Nottage

Keyword(s):

United States ◽

New Zealand ◽

United States Of America ◽

Legal Theory ◽

Analytical Framework ◽

The United States ◽

Contract Law ◽

Legal Studies ◽

The Law ◽

Japanese Law

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

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Dialogue with Dictators: Judicial Resistance in Argentina and Brazil

Law & Social Inquiry ◽

10.1111/j.1747-4469.1995.tb01069.x ◽

1995 ◽

Vol 20 (02) ◽

pp. 481-560 ◽

Cited By ~ 30

Author(s):

Mark J. Osiel

Keyword(s):

Conceptual Analysis ◽

Legal Theory ◽

Legal Interpretation ◽

Legal Rhetoric ◽

Constitutional Rule ◽

Military Rule ◽

Legal Realism ◽

Positive Law ◽

The World ◽

Anglo American

Throughout the world, judges are often asked to implement the repressive measures of authoritarian rulers. Which conception of legal interpretation and judicial role, if any, make judges more likely to resist such pressures? That question, central to Anglo-American jurisprudence since the Hart-Fuller debate, is addressed by examining recent military rule in Argentina and Brazil. In Argentina, judges were sympathetic to military rule and so criticized its “excesses” in the jurisprudential terms favored by the juntas: positivism and legal realism. Brazilian judges, by contrast, were largely unsympathetic to military rule, and so couched their criticism in terms of natural law, in order to raise larger questions and reach a broader public. Empirical study of the cases and conceptual analysis of existing theories both reveal that no view of legal interpretation inherently disposes its adherents to either accept or repudiate repressive law. Contingent political circumstances—the rulers' favored form of legal rhetoric, and the degree to which judges accept the need for a period of extra-constitutional rule—determine which legal theory fosters most resistance. But since most authoritarian rulers nominally affirm their constitutional predecessors' positive law and are often unwilling to codify publicly their most repressive policies, strict literalism usually offers the most congenial idiom for judicial resistance to such regimes.

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Criminal Code Draft and Protection for Victims of Gender Based Violence

Jurnal Perempuan ◽

10.34309/jp.v23i2.233 ◽

2018 ◽

Vol 23 (2) ◽

pp. 65

Author(s):

Sri Wiyanti Eddyono

Keyword(s):

Women Victims ◽

Legal Theory ◽

Analytical Framework ◽

Criminal Code ◽

Paper Analysis ◽

Gender Based Violence ◽

Criminal Offenses ◽

Community Justice ◽

Victims Of Violence ◽

Gender Based

This paper analysis whether the Criminal Code Draft is oriented towards the interests and protection of the rights of victims especially women victims of gender-based violence. This paper uses juridical or normative research methods, through analysis on articles in the Criminal Code Draft. This study uses analytical framework of feminist legal theory which put law as a political product and often neglects the interests of women victims of violence that vary. This paper finds that the main orientation of the Criminal Code Draft is the interests of the perpetrator and the community, but not explicitly oriented to the victim's interests. It is assumed that with reference to the public interest then it has been victim-oriented. The victim is still seen as the party who helps to reveal the case alone, not the party who has suffered the loss so they need protection and reparation. The responsibility of the perpetrator is addressed to meet the interests of a sense of community justice, not a victim. In addition, some of the regulatory articles on criminal offenses still contain problems because the Criminal Code Bill prefer to compiles several laws outside the Criminal Code but does not revise articles which based on the experiences of the victims is difficult to implement, such as the arrangement of PKDRT (domestic violence). Furthermore, there are still articles that victimize victims by criminalizing those who are actually victims of gender-based violence.

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Legal Weapons for the Weak? Democratizing the Force of Words in an Uncivil Society

Law & Social Inquiry ◽

10.1111/j.1747-4469.2001.tb00326.x ◽

2001 ◽

Vol 26 (04) ◽

pp. 847-890 ◽

Cited By ~ 2

Author(s):

Orville Lee

Keyword(s):

Free Speech ◽

Common Ground ◽

Hate Speech ◽

Legal Theory ◽

Cultural Theory ◽

Analytical Framework ◽

Symbolic Power ◽

Social Risks ◽

The Social ◽

The Right

First Amendment absolutists and proponents of speech regulation are locked in a normative stalemate over the best way to diminish racial “hate speech.” I argue that this stalemate can be overcome by considering a more expansive theory of the “force of words” and the risks the right of free speech entails for individuals. Drawing on a cultural theory of symbolic power, I discuss the merits and limitations of two recent texts which redefine hate speech as discriminatory conduct. As an alternative to this strategy, I develop an analytical framework for describing the social risks the right of free speech entails, and propose juridical and deliberative-democratic remedies that might redistribute and attenuate these risks. Cultural and legal theory can find common ground in the analysis of the undemocratic effects of symbolic power. Such common ground can be achieved if legal theorists consider the force of words as a problem for democracy and if cultural theorists consider the resources provided by democratic institutions and practices for the redistribution of the social risks of speech.

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Form, Substance, and Neo-Proceduralism in Comparative Contract Law: Law in Books and Law in Action in New Zealand, England, the United States of America, and Japan

10.26686/wgtn.16958563.v1 ◽

2021 ◽

Author(s):

◽

Luke Richard Nottage

Keyword(s):

United States ◽

New Zealand ◽

United States Of America ◽

Legal Theory ◽

Analytical Framework ◽

The United States ◽

Contract Law ◽

Legal Studies ◽

The Law ◽

Japanese Law

<p>Part One of this thesis develops the "form-substance" analytical framework proposed by Atiyah and Summers to contrast English and US law generally, comparing also New Zealand and especially Japanese law. From this perspective, it argues that both US and Japanese law prefer distinctly more substantive reasoning, whereas both English and New Zealand law maintain a more formal orientation. Part Two focuses on three areas of contract law, and the development of contract law theory, arguing that the framework helps explain differing approaches adopted in these jurisdictions. Closer attention to the "law in action" as well as the "law in books", however, results in refinements to their analytical framework. It also suggests that "neo-proceduralist" models of law generally, and private law in particular, may be becoming increasingly important in both explaining and justifying developments in all four legal systems. Part Three introduces several of these models, which go beyond "form-substance" dichotomies without necessarily being inconsistent with them. This thesis therefore aims to offer new perspectives in three disciplines: comparative legal studies, contract law, and general legal theory.</p>

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Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint

10.1017/cbo9780511498640 ◽

2006 ◽

Cited By ~ 5

Author(s):

Frederic R. Kellogg

Keyword(s):

Legal Theory ◽

Oliver Wendell Holmes

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ИЗМЕНЕНИЕ ПАРАДИГМЫ МЕТОДОЛОГИИ ЮРИСПРУДЕНЦИИ

Наукові праці Національного університету “Одеська юридична академія” ◽

10.32837/npnuola.v13i0.250 ◽

2019 ◽

Vol 13 ◽

pp. 32-40

Author(s):

Ю. М. Оборотов

Keyword(s):

Legal Theory ◽

Research Strategy ◽

The State ◽

New Paradigm ◽

Methodological Question ◽

Modern Development ◽

Decisive Importance ◽

The Subject ◽

Methodological Approaches ◽

The Law

В современной методологии юриспруденции происходит переход от изучения состояний ее объекта, которыми выступают право и государство, к постижению этого объекта в его изменениях и превращениях. Две подсистемы методологии юриспруденции, подсистема обращенная к состоянию права и государства; и подсистема обращенная к изменениям права и государства, — получают свое отображение в концептуальной форме, методологических подходах, методах, специфических понятиях. Показательны перемены в содержании методологии юриспруденции, где определяющее значение имеют методологические подходы, определяющие стратегию исследовательских поисков во взаимосвязи юриспруденции с правом и государством. Среди наиболее характерных подходов антропологический, аксиологический, цивилизационный, синергетический и герменевтический — определяют плюралистичность современной методологии и свидетельствуют о становлении новой парадигмы методологии юриспруденции. In modern methodology of jurisprudence there is a transition from the study the states of its object to its comprehension in changes and transformations. Hence the two subsystems of methodology of jurisprudence: subsystem facing the states of the law and the state as well as their components and aspects; and subsystem facing the changes of the law and the state in general and their constituents. These subsystems of methodology of jurisprudence receive its reflection in conceptual form, methodological approaches, methods, specific concepts. Methodology of jurisprudence should not be restricted to the methodology of legal theory. In this regard, it is an important methodological question about subject of jurisprudence. It is proposed to consider the subject of jurisprudence as complex, covering both the law and the state in their specificity, interaction and integrity. Indicative changes in the content methodology of jurisprudence are the usage of decisive importance methodological approaches that govern research strategy searches in conjunction with the law and the state. Among the most characteristic of modern development approaches: anthropological, axiological, civilization, synergistic and hermeneutic. Modern methodology of jurisprudence is pluralistic in nature alleging various approaches to the law and the state. Marked approaches allow the formation of a new paradigm methodology of jurisprudence.

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