scholarly journals Make It New! The Redeeming Modernism of Law and the Collapsing of Its Polarities

Pólemos ◽  
2019 ◽  
Vol 13 (1) ◽  
pp. 149-165
Author(s):  
Angela Condello ◽  
Luke Mason
Keyword(s):  
Legal Philosophy ◽  
Legal Practice ◽  
The World ◽  
Normative Practice ◽  
The Law

Abstract This article argues that law is an inherently modernist normative practice. Constructing a vision of Modernism which is at once an epistemology and an attitudinal disposition to doubt and make anew our assumptions about the world, the authors demonstrate that legal practice encounters the world through individual cases. Through these examples, the law is capable of both interacting with and comprehending that world, while also being forced to question the law’s own precepts and their application. In this manner, the law’s generalisations and abstractions become concrete, and can indeed be upended, through fleeting, impressionistic and highly case-specific examples. This exemplarity within law explains how law is able to navigate its apparently contradictory aspirations and natures which have bedevilled legal philosophy for millennia. In reality, law exists within a series of polarities, rather than contradictions, which are navigated through the law’s encounters with examples from the extra-legal world. The authors conclude that this aspect of the law’s nature also has practical consequences, requiring the law to maintain the fora in which new and novel cases are heard, and through which law’s modernist spirit can thrive.

Maxims

2019 ◽  
pp. 654-669
Author(s):  
Donald R. Davis
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Moral Foundation ◽  
Legal Principles ◽  
Legal Traditions ◽  
The World ◽  
The Law

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

scholarly journals TEORI KEADILAN DALAM PERSPEKTIF FILSAFAT HUKUM DAN ISLAM

2018 ◽  
Vol 14 (2) ◽  
pp. 27-44
Author(s):  
Muhammad Kurniawan Budi Wibowo
Keyword(s):  
Social Justice ◽  
Islamic Law ◽  
Human Life ◽  
General Concept ◽  
Legal Philosophy ◽  
Human Interest ◽  
Theory Of Justice ◽  
Divine Justice ◽  
The World ◽  
The Law

The existence of Islamic law in the world is to regulate human life, both as a person and as a member of society in order to behave according to the wishes of the Creator. This is different from the general concept of law which is only intended to regulate human life as members of society or in other word the law exists because of the conflict of human interest. Among the problems in the philosophy of Islamic law, the most frequent discourse is about the issue of justice in relation to the law. This is because the law or regulation must be fair, but in fact it is often not. This paper will describe this issue of justice from the perspective of legal philosophy and Islam. In the perspective of legal philosophy, the author will only parse the theory of justice Aristotle and John Rawl. Whereas in the perspective of Islamic legal philosophy, the author will parse the theory of the Muktazilah and Asyariyah divine justice, and the Islamic Maqasyid Theory as the ideals of Islamic legal social justice.

Sabbath Observance, Sabbath Innovation: The Hasmoneans and Their Legacy as Interpreters of the Law

2015 ◽  
Vol 46 (2) ◽  
pp. 159-181
Author(s):  
Francis Borchardt
Keyword(s):  
Central Point ◽  
Second Century ◽  
Legal Practice ◽  
Legal Tradition ◽  
Normative Practice ◽  
High Regard ◽  
The Law ◽  
First Time

Both 1 Maccabees and 2 Maccabees portray the Sabbath law as a central point of contention during the struggle over Judean law and tradition in the second century bce (e.g., 1 Macc 1:41-50; 2 Macc 6:4-6). The Hasmonean family in particular is at times highlighted as holding the Sabbath in high regard (2 Macc 5:27). In every available source, there is no question of the commitment to the inherited traditions concerning the Sabbath. However, in two passages, 1 Macc 2:29-41 and 9:43-53, the Hasmoneans are portrayed as acting in a way supported by few extant writings associated with Judean legal tradition: they engage in battle on the Sabbath. First Maccabees presents this as innovation on the part of the Hasmoneans. Josephus, who summarizes these events based upon 1 Maccabees, even recognizes this decision as the basis for normative practice (Ant. 12.272-277). As several scholars (e.g., Bar Kochva, Weiss, Scolnic) have pointed out, this event could hardly have been the first time in Judean history the issue arose. They argue against this reading of the sources. This paper contends that the plain reading of the texts is correct and 1 Maccabees is being used as the basis for legal practice in Josephus’ writings.

scholarly journals Extending of the Legal Order During Pandemic: The Russian Perspective

2021 ◽  
Vol 20 (4) ◽  
pp. 29-42
Author(s):  
Mark Belov
Keyword(s):  
Law Enforcement ◽  
The State ◽  
Legal Order ◽  
Legal Philosophy ◽  
Legal Analysis ◽  
Legal Practice ◽  
State Of Emergency ◽  
Political Reality ◽  
The World ◽  
Legal Mechanism

The unprecedented measures of quarantine regulation have led philosophers and lawyers around the world to speak of the fragility of democratic freedoms and the return of the state of emergency as a political reality described in the writings of 20th century theorists. However, the imposed restrictions are considered in the works either in relation to the legal mechanism of their imposition, or through the prism of political philosophy. In addition, the Russian experience has not been sufficiently highlighted in the publications. This article attempts to synthesize legal analysis with political-legal philosophy in order to show that the extension of the legal order is always embedded in its logic. The first part of the article shows how what has been mentioned at the level of philosophical reflection and in relation to foreign legal orders that have been implemented in Russia, using the example of substantive legal practice. The second half of the text draws attention to the logic of protest which coincides with the logic of both the police and the state. Since the rights to which the protesters draw attention to have their source precisely in the existing legal order, both the actions of the law-enforcement authorities and the actions of the protesters are aimed at protecting it. The conclusion is that the danger of this situation is that the normative system could poten-tially replace social reality in the future.

The New Terrain of International Law

2014 ◽  
Author(s):  
Karen J. Alter
Keyword(s):  
International Law ◽  
Case Studies ◽  
Domestic Politics ◽  
Political Influence ◽  
The Political ◽  
International Courts ◽  
Constitutional Review ◽  
Delegation Of Authority ◽  
The World ◽  
The Law

In 1989, when the Cold War ended, there were six permanent international courts. Today there are more than two dozen that have collectively issued over thirty-seven thousand binding legal rulings. This book charts the developments and trends in the creation and role of international courts, and explains how the delegation of authority to international judicial institutions influences global and domestic politics. The book presents an in-depth look at the scope and powers of international courts operating around the world. Focusing on dispute resolution, enforcement, administrative review, and constitutional review, the book argues that international courts alter politics by providing legal, symbolic, and leverage resources that shift the political balance in favor of domestic and international actors who prefer policies more consistent with international law objectives. International courts name violations of the law and perhaps specify remedies. The book explains how this limited power—the power to speak the law—translates into political influence, and it considers eighteen case studies, showing how international courts change state behavior. The case studies, spanning issue areas and regions of the world, collectively elucidate the political factors that often intervene to limit whether or not international courts are invoked and whether international judges dare to demand significant changes in state practices.

New and not so new strategies in promoting integrity with particular reference to Africa

2018 ◽  
pp. 38-74
Author(s):  
Barry Rider
Keyword(s):  
World Economy ◽  
Intelligence Community ◽  
Generational Change ◽  
Post Colonial ◽  
Self Interest ◽  
The World ◽  
The Will ◽  
The Law ◽  
Financial Intelligence ◽  
New Strategies

This article is focused on exploration not merely proposed developments in and refinements of the law and its administration, but the very significant role that financial intelligence can and should play in protecting our societies. It is the contention of the author that the intelligence community at large and in particular financial intelligence units have an important role to play in protecting our economies and ensuring confidence is maintained in our financial institutions and markets. In this article the author considers a number of issues pertinent to the advancement of integrity and in particular the interdiction of corruption to some degree from the perspective of Africa. The potential for Africa as a player in the world economy is enormous. So far, the ambiguous inheritance of rapacious empires and the turmoil of self-dealing elites in post-colonial times has successfully obscured and undermined this potential. Indeed, such has been the mismanagement, selfishness and importuning that many have grave doubts as to the ability of many states to achieve an ordered transition to what they could and should be. South Africa is perhaps the best example of a society that while avoiding the catastrophe that its recent past predicted, remains racked by corruption and mismanagement. That there is the will in many parts of the continent to further stability and security by addressing the cancer of corruption, the reality is that few have remained or been allowed to remain steadfast in their mission and all have been frustrated by political self-interest and lack of resources. The key might be education and inter-generational change as it has been in other parts of the world, but only an optimist would see this coming any time soon – there is too much vested interest inside and outside Africa in keeping things much as they are! The author focuses not so much on attempting to perfect the letter of the law, but rather on improving the ways in which we administer it.

Consciousness, law of nature, and nomological determinism

2018 ◽  
Author(s):  
Xiaoyang Yu
Keyword(s):  
Free Will ◽  
Important Thing ◽  
Law Of Nature ◽  
The World ◽  
The Law ◽  
The Brain

Nomological determinism does not mean everything is predictable. It just means everything follows the law of nature. And the most important thing Is that the brain and consciousness follow the law of nature. In other words, there is no free will. Without life, brain and consciousness, the world follows law of nature, that is clear. The life and brain are also part of nature, and they follow the law of nature. This is due to scientific findings. There are not enough scientific findings for consciousness yet. But I think that the consciousness is a nature phenomenon, and it also follows the law of nature.

‘Turning Human Beings into Lawyers’

2018 ◽  
Vol 2 (2) ◽  
pp. 99-104
Author(s):  
Insa Koch
Keyword(s):  
Financial Regulation ◽  
Legal Culture ◽  
Corporate Law ◽  
Customary Law ◽  
Immigration Law ◽  
Legal Anthropology ◽  
Human Beings ◽  
Legal Practice ◽  
The World ◽  
Cultural Experts

Does anthropology matter to law? At first sight, this question might seem redundant: of course, anthropology matters to law, and it does so a great deal. Anthropologists have made important contributions to legal debates. Legal anthropology is a thriving sub-discipline, encompassing an ever-increasing range of topics, from long-standing concerns with customary law and legal culture to areas that have historically been left to lawyers, including corporate law and financial regulation. Anthropology’s relevance to law is also reflected in the world of legal practice. Some anthropologists act as cultural experts in, while others have challenged the workings of, particular legal regimes, including with respect to immigration law and social welfare.

University Education and English Ecclesiastical Lawyers 1400–1650

2011 ◽  
Vol 13 (2) ◽  
pp. 132-145 ◽  
Author(s):  
Richard Helmholz
Keyword(s):  
Thirteenth Century ◽  
Legal Education ◽  
University Education ◽  
Legal Practice ◽  
Negative Opinion ◽  
Ius Commune ◽  
The Law ◽  
The Church ◽  
Academic Study

Most recent historians have expressed a negative opinion of the quality of legal education at the English universities between 1400 and 1650. The academic study of law at Oxford and Cambridge, they have stated, was easy, antiquated and impractical. The curriculum had not changed from the form it assumed in the thirteenth century, and it did little to prepare students for their careers. This article challenges that opinion by examining the inner nature of the ius commune, the law that was applied in the courts of the church, and also by examining some of the works of practice compiled by English civilians during the period. Those works show that the negative opinion rests in part upon a misunderstanding of the nature of legal practice during earlier centuries. In fact, concentration on the texts of the Roman and canon laws, as old-fashioned as it seems to us, was well suited for the tasks advocates and judges would face once they left the academy. It also provided the stimulus needed for advance in the law of the church itself; their legal education made available to potential advocates and judges skills that would permit a sophisticated application of the ius commune, one better suited to their times. The article provides evidence of how this happened.1

Celibacy and Charism in 1 Cor 7:5–7

1996 ◽  
Vol 89 (1) ◽  
pp. 1-18 ◽  
Author(s):  
John C. Poirier ◽  
Joseph Frankovic
Keyword(s):  
Sexual Activity ◽  
The World ◽  
The Law ◽  
Current Circulation

The diversity among introductions to Paul is a tribute to the apostle's genius. There are two basic reasons for the diversity of opinion that exists today: First, internal incoherency—the difficulty of sorting Paul's thought into center and periphery (or event and context); and second, external incoherency—the gaps in our information about one of the most famous and interesting lives of all time. No consensus has emerged on the question of Paul's place in the world. We make this point not because this study will address the problem directly, but because we shall make inferences from one of the views in current circulation, namely that there is a basis to Paul's claim to Pharisaism (Phil 3:5). Attacking this view, some scholars have thought of him as a “would-be Pharisee” at best. We, nevertheless, think that the preponderance of evidence situates Paul in a universalist Jewish, probably Pharisaic, context. Paul believed that many of the law's prescriptions were still valid. As an illustration of Paul's belief in the continuing validity of the law, this essay attempts to show that 1 Cor 7:5–7 is best understood in the context of ritual purity concerns. These concerns include both the injunction for spouses to abstain from sexual activity for a time of prayer and Paul's defense of a celibate lifestyle within his own charismatic self-understanding.

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