scholarly journals Behavioral Analysis of Law: An Operant Interpretation of Legal Systems

2020 ◽  
Vol 11 (1) ◽  
pp. 092-113
Author(s):  
Jorge M. Oliveira-Castro ◽  
Julio Cesar De Aguiar
Keyword(s):  
Legal Theory ◽  
Great Part ◽  
Main Function ◽  
Behavioral Patterns ◽  
Legal Systems ◽  
Second Person ◽  
Discriminative Stimuli ◽  
Verbal Responses ◽  
Legal Norms ◽  
First Response

   Law is interpreted as a functionally specialized social system, selected by its consequences, whose main function is to control politically defined socially undesirable behavior. Such control derives from legal norms, which are interlocked behavioral patterns, controlled by changes in the probability of application of sanctions, that establish social contingencies of reinforcement to the behavior of group members. These behavioral patterns form a legal behavioral network, in each node of which one response emitted by one person produces discriminative stimuli to the response of a second person, which, in turn, reinforces the occurrence of the first response and generates discriminative stimuli for the behavior of other individuals that take part in subsequent nodes. A great part of behavioral patterns that form legal norms consist of rule uttering responses, occurring in problem-solving contexts, which are verbal responses reinforced by changes in the repertoire of other individuals related to the probability of application of sanctions. Legal rules are composed of three elements: relevant factual assumptions, social goal and legal contingency. This behavior-analytic interpretation of legal systems, which proposes a novel naturalistic legal theory, encourages new areas of empirical research and applications. 

Shiner on ‘Detached Legal Statements’: A Defense of Raz

1995 ◽  
Vol 8 (2) ◽  
pp. 347-355
Author(s):  
Keith C. Culver
Keyword(s):  
Legal Theory ◽  
Point Of View ◽  
Legal Norm ◽  
Legal Systems ◽  
Internal Point ◽  
Normative Commitment ◽  
Adequate Account ◽  
Moral Commitment ◽  
Legal Norms ◽  
Joseph Raz

In his recently published book Norm and Nature, Roger Shiner contends that legal positivists cannot account adequately for the internal point of view which characterizes legal agents’ attitude of commitment to legal norms. Shiner expects that an adequate legal theory will “reproduce the way in which law functions in the lives of those who have the internal point of view to law” (NN, 137). He calls this the “reproduction demand.” In his analysis of Joseph Raz he claims that such “sophisticated positivists” cannot maintain a theory of legal statements which are “detached” from moral commitment to the legal norms they refer to. The failure of the theory of detached legal statements leaves positivists without an adequate account of the necessarily personal aspect of the internal point of view in legal systems—a point of view which according to Shiner requires normative commitment to the justification of the legal norm.

Notion and interaction of international and national legal systems

2017 ◽  
Author(s):  
Вячеслав Гаврилов ◽  
Vyachyeslav Gavrilov
Keyword(s):  
Legal System ◽  
Great Part ◽  
Legal Systems ◽  
Law Schools ◽  
Law Enforcement Agencies ◽  
Legal Doctrine ◽  
Theoretical Concepts ◽  
Legal Norms ◽  
Theory Of Law ◽  
Legal Mechanism

The monograph addresses the development of the legal system concept within the general theory of law and international legal doctrine in the second half of the XX and the beginning of the XXI century. It also defines and analyses the content of the following categories: “national legal system” and “international legal system”; reveals prerequisites for and main directions of their interaction. A great part of the monograph deals with the analysis of theoretical concepts and characteristics of the legal mechanism behind the operation of international legal norms in the legal systems of modern States. It is intended for professors and students of law schools, employees of state bodies and law-enforcement agencies as well as for those who are interested in the international law theory and its practical realization.

The Values and Norms of Islam

2010 ◽  
Vol 1 (1) ◽  
pp. 1-19
Author(s):  
Ahmed Akgunduz
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
The Other ◽  
Moral Norms ◽  
Simple Fact ◽  
Value System ◽  
Legal Norms ◽  
Islamic Legal Theory ◽  
The World ◽  
Over Time

AbstractIslamic Law is one of the broadest and most comprehensive systems of legislation in the world. It was applied, through various schools of thought, from one end of the Muslim world to the other. It also had a great impact on other nations and cultures. We will focus in this article on values and norms in Islamic law. The value system of Islam is immutable and does not tolerate change over time for the simple fact that human nature does not change. The basic values and needs (which can be called maṣlaḥa) are classified hierarchically into three levels: (1) necessities (Ḍarūriyyāt), (2) convenience (Ḥājiyyāt), and (3) refinements (Kamāliyyāt=Taḥsīniyyāt). In Islamic legal theory (Uṣūl al‐fiqh) the general aim of legislation is to realize values through protecting and guaranteeing their necessities (al-Ḍarūriyyāt) as well as stressing their importance (al‐ Ḥājiyyāt) and their refinements (taḥsīniyyāt).In the second part of this article we will draw attention to Islamic norms. Islam has paid great attention to norms that protect basic values. We cannot explain all the Islamic norms that relate to basic values, but we will classify them categorically. We will focus on four kinds of norms: 1) norms (rules) concerned with belief (I’tiqādiyyāt), 2) norms (rules) concerned with law (ʿAmaliyyāt); 3) general legal norms (Qawā‘id al‐ Kulliyya al‐Fiqhiyya); 4) norms (rules) concerned with ethics (Wijdāniyyāt = Aḵlāqiyyāt = Ādāb = social and moral norms).

The Shari’a Approach to Contemporary Problems of Mass Surveillance

2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Sattam Eid Almutairi
Keyword(s):  
North America ◽  
Personal Data ◽  
Legal Systems ◽  
Legal Norms ◽  
Muslim Countries ◽  
Norms And Values ◽  
The World ◽  
State Surveillance ◽  
Mass Surveillance ◽  
Do So

AbstractThe phenomenon of mass surveillance has confronted legal systems throughout the world with significant challenges to their fundamental norms and values. These dilemmas have been most extensively studied and discussed in relation to the kind of privacy cultures that exist in Europe and North America. Although mass surveillance creates the same kinds of challenges in Muslim countries, the phenomenon has rarely been discussed from the perspective of Shari’a. This article seeks to demonstrate that this neglect of mass surveillance and other similar phenomena by Shari’a scholars is unjustified. Firstly, the article will address objections that Shari’a does not contain legal norms that are relevant to the modern practice of state surveillance and that, if these exist, they are not binding on rulers and will also seek to show that, whatever terminology is employed, significant aspects of the protection of privacy and personal data that exists in other legal systems is also be found deeply-rooted in Shari’a. Secondly, it will assess the specific requirements that it makes in relation to such intrusion on private spaces and private conduct and how far it can benefit from an exception to the general prohibition on spying. Finally, it is concluded that mass surveillance is unlikely to meet these Shari’a requirements and that only targeted surveillance can generally do so.

scholarly journals Resilience of Legal Systems

2021 ◽  
pp. 509-529
Author(s):  
J. B. Ruhl ◽  
Barbara Cosens ◽  
Niko Soininen
Keyword(s):  
Legal Theory ◽  
Environmental Law ◽  
Theoretical Research ◽  
Future Research ◽  
Special Role ◽  
Legal Systems ◽  
Social Ecological Systems ◽  
Resilience Thinking ◽  
System Resilience ◽  
Practical Experiences

Resilience theory, also known as resilience thinking, has emerged as a powerful theoretical framework for many disciplines. Legal theorists have, however, only in the past decade begun to contextualize resilience thinking for legal systems. This chapter summarizes where resilience thinking has gone thus far in legal theory and recommends where it should go from here. The authors start by asking the two fundamental questions of resilience thinking, putting them in the context of legal systems: resilience of what and resilience to what? Because of the special role legal systems play in the governance of complex social-ecological systems, the authors add a third question: resilience for what? We then explore five key features of system resilience as they relate to legal systems: (a) reliability, (b) efficiency, (c) scalability, (d) modularity, and (e) evolvability. Using environmental law as a case study, the discussion offers concrete examples of how each property manifests and operates in legal systems. The authors close with an exploration of how what has been learned thus far about legal system resilience from theoretical research and practical experiences should shape future research, in particular toward a deeper understanding of adaptive governance.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

The Influence of Utopian Projects on the Interpretation of International Law and the Healthy Myth of Objectivity

2018 ◽  
Vol 60 (1) ◽  
pp. 515-538
Author(s):  
Severin Meier
Keyword(s):  
World War I ◽  
International Law ◽  
Legal Theory ◽  
Social Darwinism ◽  
Legal Interpretation ◽  
World War ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Critical Legal Theory ◽  
State Consent

Social Darwinism as a utopian project had a decisive influence on the interpretation of the ius ad bellum before World War I. This contribution tries, among others, to draw parallels to the way today’s utopian visions of democracy and the rule of law affect international law. Approaches to legal interpretation influenced by critical legal theory are used to explain how such extra-legal considerations can play a role in the interpretation of international legal norms. Such approaches maintain that international law cannot be objective, i.e. simultaneously based on State consent and on extra-consensual standards. The article further asks how international law should be understood if it cannot be objective. In other words, it discusses the practical consequences if international law has to rely on extra-legal considerations, such as the belief in Social Darwinism or the desire to spread democracy, in order to reach solutions to legal problems. It is argued that upholding the belief in international law’s objectivity is preferable to its alternatives.

Promise of the Obligation or the Act of a Third Party

De Jure ◽  
2019 ◽  
Vol 10 (2) ◽  
Author(s):  
Petar Topurov ◽  
Keyword(s):  
Legal Theory ◽  
Third Party ◽  
Legal Systems ◽  
Legal Relationship

The promise of the obligation or the act of a third party is a lega figure, regulated both in Bulgarian and foreign legal systems. At present, the study of this legal figure from the Bulgarian legal theory has limited itself to an axplanation of the problems of the institute only in the general published courses of law of obligations. The paper analyzes the history, the regulation and the use of the promise of the obligation or the act of a third party as a legal figure that guarantees future legal relationship.

The Sources of Law[121]

2019 ◽  
pp. 89-126
Author(s):  
Alf Ross
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
Legal Positivism ◽  
Cultural Tradition ◽  
Legal Systems ◽  
Legal Rules ◽  
The Difference ◽  
Realist Perspective

This chapter identifies the ideology of the sources of law in the sense of determining the general sources through which judges form their beliefs about the validity of individual legal rules. In accordance with the norm-descriptive perspective, the focus is on identifying the ideology of the sources of law that is actually held by judges. As part of scientifically valid law, the ideology of the sources of law varies from one legal system to another. The task for general legal theory can therefore only consist in stating and characterizing certain general types of sources of law, which experience tells us are found in all well-developed legal systems where they are found to determine how courts proceed in their search for the norms on which they base their decision. This chapter identifies four such sources of law and considers the degree of objectification or positivization possessed by each of these types of sources. Specifically, it discusses the completely objectivized type of source: authoritative formulations (legislation in its widest sense); and the partially objectivized types of source: precedent and custom; and the non-objectivized, ‘free’ type of source: ‘cultural tradition’ or ‘the nature of the matter’. Countenancing the latter as a scientifically valid source of law, is further argued to highlight the difference between the author’s legal realist perspective and the formalist perspective characteristic of legal positivism.

scholarly journals The Idea of Effective International Law: Continuing the Discussion

AJIL Unbound ◽  
2014 ◽  
Vol 108 ◽  
pp. 91-92 ◽  
Author(s):  
Vijay Padmanabhan
Keyword(s):  
International Law ◽  
Annual Meeting ◽  
Interest Group ◽  
Legal Theory ◽  
Panel Discussion ◽  
Legal Norms ◽  
Empirical Question ◽  
Biennial Conference ◽  
American Society

The joint 108th American Society of International Law (ASIL) Annual Meeting and 76th International Law Association (ILA) Biennial Conference was organized under the theme “The Effectiveness of International Law.” In conjunction with this theme, the ASIL Legal Theory Interest Group hosted a panel discussion exploring the theoretical dimensions of the concept of “effectiveness” as understood in international law. Panelists discussed three related questions: (1)Is the effectiveness of international law an empirical question measured through evaluating compliance with international legal norms?(2)What conceptions of effectiveness might exist beyond compliance? Could such conceptions be captured in theoretical or moral terms?(3)Why is international law concerned with effectiveness at all?

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