scholarly journals Utrata legitymizacji prawa według koncepcji Ronalda Dworkina

2021 ◽  
Vol 43 (2) ◽  
pp. 249-261
Author(s):  
Paweł Jabłoński
Keyword(s):  
Legal System ◽  
Moral Obligation ◽  
Civil Disobedience ◽  
Legal Order ◽  
Political Obligation ◽  
Second Step ◽  
Philosophy Of Law ◽  
The Law

The aim of the paper is to analyse the answer that Dworkin’s philosophy of law provides to the following question: what is the threshold of wickedness of the legal order that excuses citizens from the moral obligation to obey the law? This is not a problem of civil disobedience (which only contests a particular decision of making or applying the law), but a situation in which the whole political-legal system is the object of moral contestation. The task will be carried out in three steps. In the first one, I will outline Dworkin’s theory of political obligation, situating it in the broader framework of the debate on this obligation. In the second step, I will analyse one of the main elements of this theory, namely the legitimacy of the legal order. As a third step, I will draw attention to a rather — as it seems — surprising similarity between Dworkin’s argumentation and Radbruch’s formula.

Political Obligation

Philosophy ◽  
2012 ◽  
Author(s):  
Ned Dobos
Keyword(s):  
Social Exclusion ◽  
Moral Obligation ◽  
Sole Source ◽  
Prima Facie ◽  
Political Obligation ◽  
Moral Duty ◽  
Self Interest ◽  
The Law ◽  
Additional Reason

There are good, prudential reasons to obey the law. The prospect of punishment, not to mention loss of reputation and social exclusion, is enough for most any citizen possessed of a suitably far-sighted self-interest to discharge his or her legal duties. But is there a moral obligation to do what the law requires, just because the law requires it? If the answer is yes and the mere illegality of an act renders its performance prima facie morally wrong, political obligation obtains. Political obligation thus refers to the moral duty of citizens to obey the laws of their state. In cases where an action or forbearance that is required by law is morally obligatory on independent grounds, political obligation simply gives the citizen an additional reason for acting accordingly. But law tends to extend beyond morality, forbidding otherwise morally innocent behavior and compelling acts and omissions that people tend to think of as morally discretionary. In such cases, the sole source of one’s moral duty to comply with the law is one’s political obligation.

scholarly journals MEMBUMIKAN HUKUM ISLAM DI INDONESIA

2016 ◽  
Vol 14 (2) ◽  
Author(s):  
Muhammad Fahmi Al Amruzi
Keyword(s):  
Legal System ◽  
Islamic Law ◽  
Public Life ◽  
Legal Order ◽  
National Legal System ◽  
Strategic Position ◽  
The Law

The existence of Islamic law in Indonesia has long earned a place in public life. It is the law established in the midst of society and even became the official legal state at the time of Islamic kingdoms until the beggining of VOC. When the Dutch managed to take over all the power of the Islamic kingdoms, the Islamic law began to be abolished gradually. After independence, Indonesian people began to dig his own laws independently and Islamic laws still exists and getting stronger. The Islamic law has its own power which can take the form in legisation, jurisprudence and public legal awareness. Islamic law has an important strategic position in the formation and preparation of Indonesia's national law. One effort to incorporate Islamic law into the national legal order is through the transformation of the values of Islamic law into the Indonesian National Legal System.

The limits of the law and the mutability of the judicial system

2016 ◽  
pp. 11-27
Author(s):  
DAN CLAUDIU DĂNIȘOR
Keyword(s):  
Legal System ◽  
Liberal Democracy ◽  
Structural Modification ◽  
Legal Order ◽  
Judicial System ◽  
Social Changes ◽  
Structural Modifications ◽  
The Law ◽  
Political Economic ◽  
Structural Conflict

In a liberal democracy, the sphere of law cannot be unlimited. The first category of its limits results from the necessity to temper the mutability of the legal system. Firstly, the law must not be perishable. The passage of time should not, in itself, affect the legal system. Thus, the law must limit the desire for change only for the sake of change and the desire to turn regulations into a performance. The limitation of such tendencies is not legally effective under any circumstances, meaning that the choice of regulatory methods must take into account formal principles and the context of their application as well. Secondly, law cannot be receptive to all changes. It must shift only under certain circumstances, commensurate with the magnitude of social changes. Any social conflict, change of ideological orientation, or political, economic or structural modification should not determine modifications with respect to the legal order. Thirdly, the mutability of the legal system may be determined by systemic dysfunctions. However, any structural conflict within the legal order should not bring about systemic changes. Basically, only certain dysfunctions can be classified as systemic, and the reaction towards them should be limited to drawing up structural modifications.

On Obligation and Civil Disobedience

Worldview ◽  
1971 ◽  
Vol 14 (7-8) ◽  
pp. 21-24 ◽  
Author(s):  
James F. Childress
Keyword(s):  
Civil Disobedience ◽  
Political Obligation ◽  
Political Ethics ◽  
Isaiah Berlin ◽  
The Law

In the recent burst of enthusiasm for endorsing violence and revolution, there has been too little reflection on why men ought to obey the law. Indeed, it seems that the charge of irrelevance can be levelled against anyone who insists on thinking seriously about traditionally important issues of political ethics such as political obligation, which, according to Isaiah Berlin, is "the most fundamental of all political questions." Fortunately, as these books show, not all philosophers and theologians have succumbed to the attraction of easy slogans.

scholarly journals Normative Function of Constitutional Decisions

2021 ◽  
Vol 3 (1) ◽  
pp. 32-50
Author(s):  
Francisco Balaguer Callejon ◽  
Keyword(s):  
Legal System ◽  
Theoretical Basis ◽  
Legal Order ◽  
Constitutional Court ◽  
Normative Function ◽  
Legal Context ◽  
Hans Kelsen ◽  
Constitutional Decisions ◽  
The Law

Introduction. This work analyses the normative function of constitutional judgments, their cha- racteristics and their limits. Theoretical Basis. Methods. The theoretical bases start from the work of Hans Kelsen in relation to the condition of “negative legislator” of the constitutional court, which already implies a dero- gatory capacity on the legal order and, therefore, a normative function, completed with the differ- entiation of Vezio Crisafulli between “disposition and norm” that allows opening the constitution- al jurisdiction to a consideration as “positive legislator”. Likewise, theoretical contributions from other works by the author of the research are incorporated. The method that has been used to prepare the work is based on the analysis of the current legal reality of the constitutional jurisdic- tion taking into account the legal context in which it develops its functions. Results. It is concluded that the normative function of constitutional judgments is a structural fea- ture inherent to constitutional jurisdiction, which presents a series of specific characteristics. This normative function is characterized by being a complex reality, due to the diversity of procedures in which it occurs and the different legal material with which the constitutional jurisdiction works. It is also a complementary normative function, which lacks the plenitude of the legal production of law. Lastly, it is a fragmentary normative function, which operates on specific dispositions or provisions of the normative chains, without having the capacity to configure complete normative chains that correspond only to the legislator in the exercise of his legislative function. Discussion and Conclusion. Constitutional decisions clearly develop a normative function, as they incorporate more into the legal system than just the interpretation of the provisions of the law or the Constitution. These decisions derive from legal or constitutional provisions norms that complement the constitutional and legislative levels of the legal system. Thus, they contribute, albeit with the limitations noted in this paper, to the development of the legal system, resolve conflicts and establish norms that can help prevent new disputes. Thus, they perform the peace- keeping function that is inherent in any justice.

scholarly journals INFLUENCE OF GLOBALIZATION ON THE LAW SYSTEMS

2014 ◽  
Vol 8 (1) ◽  
pp. 24-30
Author(s):  
Emilian Ciongaru
Keyword(s):  
Legal System ◽  
Legal Order ◽  
Legal Issues ◽  
Partial Replacement ◽  
Legal Systems ◽  
The Law ◽  
Globalization Of Law

The legal issues compared by litigants to the phenomenon of globalization include thepenetration of global juridical values into the national law systems to which they do nottraditionally belong and thus, we may speak of the globalization of law. Globalization, aphenomenon that practically extends the communication bridges among states also results inthe fact that the internal legal order expands towards a new legal order, namely a globallegal order. In this context, the modernization and compatibility of the legal systems throughthe transfer of law is inevitable, a fact that might mean the total or partial replacement of alaw system which proves to be out of date or obsolete by a system or parts of it assumed to besomehow superior and healthier and aiming at enriching or treating such system so as toensure the compatibility of an internal legal system to the regional and inevitably theinternational one. In these conditions, the science of law exceeds the borders and the internalorganization rules of a certain state may be useful in other state and vice-versa.

AUDIÊNCIAS DE CUSTÓDIA NO BRASIL: UMA APRESENTAÇÃO DESTE INSTITUTO OBSERVANDO-SE OS PRINCÍPIOS DE DIREITO PENAL E AS PRISÕES PENAIS DO ORDENAMENTO JURÍDICO BRASILEIRO

2018 ◽  
Vol 7 (1) ◽  
pp. 129
Author(s):  
Rubens Luìs Freiberger ◽  
Juarez Diego Siqueira
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Police Officers ◽  
Legal Order ◽  
Inductive Method ◽  
National Legal System ◽  
The Law ◽  
The Individual ◽  
The University

<p class="resumo">O presente artigo retrata o instituto da Audiência de Custódia, implementado no ordenamento jurídico nacional em 15 de dezembro de 2015. Estas audiências visam uma apresentação do indivíduo detido a um juiz para que seja examinada a legalidade da prisão, as condições e o tratamento recebido por parte das autoridades que a realizaram e ainda para verificação sobre a necessidade de manutenção da prisão durante o decorrer do processo. Muitos aspectos foram questionados pela doutrina, magistrados, delegados de polícia e por demais operadores do direito, tanto sobre a legalidade do meio de implantação deste instituto e também sobre a necessidade de realização ou não dessas audiências. O estudo faz uso do método indutivo associado à pesquisa bibliográfica, utilizando a produção descritiva e observando a Normalização dos Trabalhos Acadêmicos da Universidade Alto Vale do Rio do Peixe (UNIARP), bem como as regras da Associação Brasileira de Normas Técnicas (ABNT).</p><p class="resumo"><strong>Palavras-chave: </strong>Audiência de Custódia. Prisões. Legalidade. Implantação.</p><h3>CUSTODIAL AUDIENCES IN BRAZIL: A PRESENTATION OF THIS INSTITUTE OBSERVING THE PRINCIPLES OF CRIMINAL LAW AND PENAL PRISONS OF THE BRAZILIAN LEGAL ORDER</h3><div><p class="abstractCxSpFirst"><strong>Abstract: </strong>This article portrays the institute of the Hearing of Custody, implemented in the national legal system on December 15, 2015. These hearings aim at presenting the individual detained to a judge to examine the legality of the prison, the conditions and the treatment received by of the authorities that carried it out and also to verify the need to maintain the prison during the course of the proceedings. Many aspects were questioned by the doctrine, magistrates, police officers and by other operators of the law, as much on the legality of the means of implantation of this institute and also on the necessity of realizing or not of these audiences. The study uses of the inductive method associated with the bibliographic research, using descriptive production and observing the Standardization Works of academic works of the University Alto Vale do Rio do Peixe (UNIARP), as well as the rules of the Brazilian Association of Technical Norms (ABTN).</p><p class="abstractCxSpLast"><strong>Keywords: </strong>Custody Hearing. Prisons. Legality. Implantation.</p></div>

scholarly journals Criminal Justice in Post-Mao China: Some Preliminary Observations

1981 ◽  
Vol 87 ◽  
pp. 440-469 ◽  
Author(s):  
Shao-Chuan Leng
Keyword(s):  
Criminal Justice ◽  
Legal System ◽  
World Wide ◽  
Legal Order ◽  
The Other ◽  
Judicial Process ◽  
Other Hand ◽  
The Law

China' trial of the “ gang of four ” and six other members of the “ Lin-Jiang cliques ” has attracted world-wide attention.* The Chinese press has pictured the trial as a landmark: the end of a lawless era, a successful test of the new legal system, and a demonstration that all are equal before the law.1 Contrary to Chinese leaders’ expectations, however, many observers have considered the trial as essentially a political rather than a legal exercise.2 On the other hand, the holding of this trial appeared to reflect, among other things, Beijing' desire to publicize its commitment to legality, and the controlled and selected reporting of the court sessions has given the outside world glimpses of the judicial process under China' new and emerging legal order.

scholarly journals Legitimacy of Law in the Context of Competition of Identities and Multiculturalism

2018 ◽  
Vol 5 (2) ◽  
pp. 101-109
Author(s):  
N V Isaeva
Keyword(s):  
Legal System ◽  
Social Parasitism ◽  
Legal Order ◽  
Global Migration ◽  
Legal Identity ◽  
The Law ◽  
The One ◽  
Paternalistic Approach

The article analyses the factors and preconditions that complicate the law legitimation processesin the context of global migration and the modern states’ multiculturalism policies based on the statist- paternalistic approach, which gives rise to social parasitism and conf licts, as well as to the identities competition, particularly the one of the religious-ethnical and legal identities. The legal identity differs from the religious one in the fact that the former is oriented to the legal system and society as a whole, and the latter - to a part of the society, which may give rise to a social conf lict and confrontation of different communities and the whole society. In order to overcome this kind of competition, the author substantiates the necessity of methodology and practices based on the recognition of a person’s ability to develop and assimilate the values and senses inherent to the law, to use them for self-understanding, personal fulf illment and achieving his o her legal identity - that is, the legal characteristic which excludes the criminal misbehavior as a factor infringing upon a person’s integrity and self hood, and, at the same time, a factor which provides the legal order stability and legitimacy of the law.

Civil disobedience, and what else? Making space for uncivil forms of resistance

2019 ◽  
Vol 20 (1) ◽  
pp. 157-164 ◽  
Author(s):  
Erin R Pineda
Keyword(s):  
Civil Disobedience ◽  
Political Obligation ◽  
Philosophical Analysis ◽  
Fair Play ◽  
Short List ◽  
Recent Scholarship ◽  
The Face ◽  
The Law ◽  
Associative Duties

Theorists of political obligation have long devoted special attention to civil disobedience, establishing its pride of place as an object of philosophical analysis, and as one of a short list of exceptions to an otherwise binding obligation to obey the law. Yet all of this attention to civil disobedience has left the broader terrain of resistance to injustice relatively under-theorized. What other forms of action are justifiable – even required – in the face of systemic injustice? Candice Delmas' A Duty to Resist: When Disobedience Should Be Uncivil offers an original and powerful defense of the idea that we have a duty to resist, and that carrying out this duty may sometimes require going beyond civil disobedience – engaging in forms of action that are evasive, shocking, violent, or otherwise deemed “uncivil.” Building on a wealth of recent scholarship and a rich set of examples, Delmas grounds the duty to resist in the same principles that political philosophers routinely use to defend an obligation to obey the law: the natural duty of justice, the principle of fair play, Samaritan duties to rescue others from peril, and the associative duties of membership. In making room for uncivil forms of dissent, however, I contend that Delmas ironically hollows out the category of civil disobedience, wedding it too tightly to a principle of decorum, and isolating it from protest that exceeds the boundaries of the communicative. Nevertheless, A Duty to Resist is an excellent – and much needed – contribution to the literature on dissent and disobedience.

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