scholarly journals BASIS EPISTEMOLOGIS PARADIGMA RASIONAL DALAM ILMU HUKUM: SEBUAH DESKRIPSI TENTANG ASUMSI-ASUMSI DASAR TEORI HUKUM MURNI-HANS KELSEN

2014 ◽  
Vol 14 (3) ◽  
Author(s):  
Kelik Wardiono ◽  
Khudzaifah Dimyati
Keyword(s):  
Cognitive Science ◽  
Rule Of Law ◽  
Legal Norm ◽  
Empirical Reality ◽  
Philosophical Approach ◽  
Pure Theory ◽  
The Rule Of Law ◽  
Basic Assumptions ◽  
Hans Kelsen ◽  
Theory Of Law

Based on the philosophical approach, it is known basic assumptions of rational paradigm as seen in Hans Kelsen's pure theory of law that consists of: human assumptions based on the quasi-transcendental along with its characters and aurea aetas; ontological assumptions based on empirical reality and equating sein reality with sollen, and normativity created as logico transcendental conditions; epistemological assumption that underlying the science of law as cognitive science, creating the rule of law as a whole object, and reconstructing legal norm as the relation between non-causal and non-metaphysical facts; axiological assumption that reconstructs norm as the object of legal science and equating the basic norms with natural laws.Key words: basic assumptions, rational paradigm, the theory pure of law, jurisprudance.

Hans Kelsen and Court-Ordered Apology in Taiwan: A Critical Analysis of Judicial Yuan Interpretation No. 656 [2009]

2020 ◽  
Vol 21 (2) ◽  
pp. 270-297
Author(s):  
David KC Huang ◽  
Nigel NT Li
Keyword(s):  
Rule Of Law ◽  
Critical Analysis ◽  
Legal Institutions ◽  
Legal Institution ◽  
Pure Theory ◽  
The Rule Of Law ◽  
The People ◽  
Hans Kelsen

Abstract The rule of ‘Li’ (De-Zhi), which embraces the spirit that morality and law are one, historically underpinned China’s legal institution. Even though it is no longer recognised in Taiwan’s legal institutions, it still influenced judges when they had to decide whether a court-ordered apology should be constitutional. A critical analysis of Judicial Yuan Interpretation No. 656 [2009] through the lens of Hans Kelsen’s pure theory lays bare the quandary facing the judiciary in a Confucian society, that whilst the judiciary appreciated the merits of the rule of law, it hesitated to tell the people that morality is not law.

scholarly journals Law and values in the theory of law of Józef Nowacki

2018 ◽  
Vol 6 (2) ◽  
pp. 255-276
Author(s):  
Sławomir Tkacz
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Specific Nature ◽  
The Rule Of Law ◽  
Basic Assumptions ◽  
Critical Attention ◽  
The Law ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Ideological Assumptions

The contents of the paper present the basic assumptions of Józef Nowacki’s theory of law. The author was a proponent of Hans Kelsen’s theory. The characteristic of Józef Nowacki’s views was the conviction that the foundations of the study of the  aw should be their „purity”. It is understood by him as freedom from any ideological assumption. This approach is consistently presented in his works dealing with issues of a specific nature. In the course of deliberations, the problem of the concept of law was discussed, as understood by Józef Nowacki. His works on the issues of the rule of law were also analyzed. Moreover, they presented his critical attention devoted to the jurisdiction of the Polish Constitutional Court. The conclusions highlight the validity of the author’s view that the consideration of the law should be free of any ideological assumptions

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.

VLADAVINA PRAVA NA „USLUZI“ NARODU, KROZ TEORIJU I PRAKSU

2021 ◽  
Author(s):  
Ana Opačić ◽  
◽  
Vladimir Vrhovšek ◽  
◽  
Keyword(s):  
Rule Of Law ◽  
Case Law ◽  
Theory And Practice ◽  
Legal Norm ◽  
The Rule Of Law ◽  
Know How ◽  
The People ◽  
Key Factor ◽  
Law And Justice ◽  
Legal Security

We, as the authors of this text, have found it important to point out the close connection between law and justice, theory and practice, because citizens go to court for justice. The judge says what justice is. However, when the legal norm is available and well known to the persons, to whom it refers, and when it is predictable and the case law is uniform, the persons to whom the legal norm refers, can know their rights and obligations concretely, and thus know how to treat them. In order to that they must behave and anticipate the consequences of their behavior. When all the above has been fulfilled, it can be said that the requirements of the rule of law and legal security have been met, so it can be freely said that law and justice are at the "service of the people", through theory and practice. It should be reminded that the precision of the legal norm is one of the basic elements of the rule of law and is a key factor for the emergence and maintenance of the legitimacy of the legal order, which applies to all branches of law, and that court decisions are binding on all.

Law and psychoanalysis: close intertwining between Hans Kelsen and Sigmund Freud

KPGT_dlutz_1 ◽  
2021 ◽  
Vol 35 (1) ◽  
pp. 6-35
Author(s):  
Ricardo Borrmann
Keyword(s):  
Social Psychology ◽  
Sigmund Freud ◽  
Cultural Background ◽  
The State ◽  
Pure Theory ◽  
Original Analysis ◽  
Hans Kelsen ◽  
Personal Context ◽  
Theory Of Law ◽  
New Hypothesis

This paper offers an original analysis of the interconnections between law and psychoanalysis through the personal and academic exchanges between Hans Kelsen (1881-1973) and Sigmund Freud (1856-1939). After a brief analysis of the similar cultural background of both scholars as Jews who grew up in fin-de-siècle Vienna, the text focuses on the personal encounters between them and subsequently analyzes Kelsen's reception of Freud's work in “The State-Concept and Social-Psychology” (Der Begriff des Staates und die Sozialpsychologie). Kelsen’s text was originally published in 1922 in Freud’s review, Imago, resulting from a conference he held at the Viennese Psychoanalytical Society. This paper analyzes the relevance of Freud’s theory to the construction of the Pure Theory of Law, especially regarding his concept of the state. Furthermore, it presents a new hypothesis for the subjective reasons behind Kelsen’s attraction to psychoanalysis, and for his admiration of Freud, which it tries to understand through the personal context of Kelsen’s life. Finally, it deals with the possible influence of Kelsen on Freud's work, especially with regards to the term "Super-Ego."

Kelsen's Theory of International Law

1936 ◽  
Vol 30 (4) ◽  
pp. 736-741 ◽  
Author(s):  
W. B. Stern
Keyword(s):  
International Law ◽  
Natural Law ◽  
Scientific Basis ◽  
Law Schools ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Theory Of Law

Among legal philosophers, the time-honored dispute between natural-law schools and legal positivists arouses ever new interest. On the side of the positivists, the “pure theory of law” gains more and more ground. This theory is mainly represented by Professor Hans Kelsen, formerly of Vienna, now of Geneva, and by Professor Alfred von Verdross, of Vienna. In America, systematic consideration was first devoted to it by Dr. Johannes Mattern, who analyzed Verdross's thinking; later, Dr. Josef L. Kunz, one of the foremost followers of Kelsen, took up the discussion, emphasizing the importance of the theory for a scientific basis of international law; and quite recently an article by Dr. Henry Janzen dealt with legal monism as the basis of the “pure theory of law.”

scholarly journals Hukum Agraria Atas Keberadaan Bangunan Pada Ruang Atas Tanah

2015 ◽  
Vol 1 (1) ◽  
pp. 11
Author(s):  
Musa Anthony Siregar ◽  
Zulkamaein Koto
Keyword(s):  
Rule Of Law ◽  
Legal Protection ◽  
Secondary Data ◽  
Transfer System ◽  
Real Property ◽  
The Rule Of Law ◽  
Shopping Centre ◽  
Agrarian Law ◽  
Theory Of Law ◽  
Legal Consequences

<p>This research aim to examined how the legal protection of the existence of structures built in space on the top land from  perspective of Agrarian Law. And how the legal consequences of structures built in space on the top land by build operate transfer system. The discussion and analysis using the theory of law protection supported  by theory of the rule of law and the principles of land law. The research method is normative legal research to obtain the necessary data in connection with the period issues the data secondary data is consisting of primary legal materials.Second- ary legal materials, tertiary legal materials. Data analysis be done with juridical analysis of qualitative Research object is Senen Multipurpose Bridge that was built in space on the top land not on the land where that right is.That  was located between the two buildings and large shopping centre Pasar Senen and Plaza Atrium. Legal protection for the building space on the ground has not been found on the Agrarian  Law. Legal consequences of build operate transfer (BOT) system for the parties oc- cured namely the Provincial Goverment  DKI Jakarta and PT Jaya Real Property Tbk.</p><p>Keywords: BOT system, space land, agrarian law</p>

scholarly journals A moldura kelseniana: formulação dos limites da interpretação na Teoria Pura do Direito

2020 ◽  
pp. 221-244
Author(s):  
Paulo Henrique Rodrigues Pereira
Keyword(s):  
20Th Century ◽  
Philosophy Of Law ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Legal Thinking ◽  
Theory Of Law

RESUMOA Teoria Pura do Direito figura como uma das grandes obras do pensamento jurídico do século XX. Entretanto, pouco se explora a visão do autor sobre a interpretação das normas e dos princípios em sua visão totalizante do direito. O presente artigo busca reconstituir a discussão sobre as limitações da visão de Hans Kelsen sobre a interpretação no direito, focando em sua Teoria Pura. Através da delimitação das críticas feitas a Kelsen, nominalmente sobre incoerência e insuficiência da operação de sua teoria, o autor passará à abordagem do próprio Kelsen sobre a interpretação como resposta a tais críticas, para então produzir um balanço desse debate.PALAVRAS-CHAVEKelsen. Interpretação. Teoria Pura do Direito. Filosofia do Direito. ABSTRACTThe “Pure Theory of Law” occupies a place as one of the most relevant works of legal thinking in the 20th Century. However, little is discussed on Hans Kelsen’s vision on interpretation of norms and principles in his systematic vision of Law. This article seeks to explore the discussion regarding the limitations of his vision on interpretation of Law, focusing on his Pure Theory. Through the delimitation of the criticism to his work, specially of incoherence and insufficiency of the operation of his theory, the author will then pursue Kelsen’s own approach on the interpretation as an answer to such criticism, to then display an overall assessment of this debate.KEYWORDSKelsen. Interpretation. Pure Theory of Law. Philosophy of Law.

scholarly journals DISCUSSION ON ISSUES OF THE THEORY OF LEGAL INCENTIVES

2018 ◽  
Vol 6 ◽  
pp. 562-567
Author(s):  
Aleksandr Gavritskiy ◽  
Svetlana Miroshnik
Keyword(s):  
Rule Of Law ◽  
Human Factor ◽  
Private Companies ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Social Actions ◽  
Legal Relationship ◽  
The Social ◽  
Theory Of Law ◽  
Definition Of

The purpose of this article is to examine legal incentives as a form of a lawful norm to improve the social actions of individuals. A definition of legal incentive as a variety of legal norms is formulated and the features and principles of an incentivizing legal relationship identified and formulated. The provisions can be viewed as approaches for solving the problems of motivating lawful behavior and for use in analyzing practical problems associated with the theory of law, legal culture, and the rule of law. The concept offered reveals new possibilities for cognition of legal relations that are important for developing the theory of legal norms and the theoretical aspects of the realization of law. The functional approach underlying the research emphasizes the importance of this form of law and promotes the more efficient use of the its potential. The conclusions are relevant for further theoretical studies and the development of a policy by private companies aimed at activating the human factor to increase the productivity of their employees.

scholarly journals doctrine of the rule of law in the light of the theory of legal interpretation

2021 ◽  
Vol 7 (Extra-B) ◽  
pp. 335-342
Author(s):  
Vladimir Gavrilovich Rotan ◽  
Vladimir Nikolaevich Koval ◽  
Sergey Zenin ◽  
Ivan Mikhaylovich Yapryntsev ◽  
Yuliya Valentinovna Chertkova
Keyword(s):  
Rule Of Law ◽  
Field Of View ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Holistic View ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Legal Enforcement ◽  
Almost All

The article deals with the problem of the connection of legal norms with the texts of the provisions of legislative acts, in which the legal norms are fixed. The purpose of this article is an attempt to develop such aspects of the doctrine of legal norms that would allow the concept of legal norms to cover almost all the legal content of the recognized theories, law, and practice of legal enforcement sources of law and create a holistic view of the legal norm. There are legal norms that are fixed textually (expressed verbally), and legal norms that are fixed logically. The latter type of norms usually does not fall into the field of view of scholars. The article substantiates the need to study the legal norms that are logically fixed in the provisions of legislative acts and the corresponding development of the doctrine of legal norms.

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