scholarly journals Dispute about the Nature of Law

2021 ◽  
pp. 17-34
Author(s):  
Sergiy Maksymov
Keyword(s):  
Practical Aspect ◽  
Soviet Philosophy ◽  
General Description ◽  
Distinctive Features ◽  
Legal Thinking ◽  
The Concept Of Law ◽  
Theory Of Law ◽  
Western Experience ◽  
The Relationship ◽  
Positivist Approach

The article analyzes the conditions for a dialogue between Western and post-Soviet philosophy and theory of law on the nature of law (in terms of the first), or understanding of law (in terms of the second), which would create an opportunity for the organic inclusion of the “dispute about the nature of law” elements in the context of the discussion and solving issues relevant to the post-Soviet philosophy of law, including the shift of emphasis from the theoretical to the practical aspect of the problem of the nature of law. The research begins with a general description of the peculiarities of the “discourse of legal thinking (understanding of law)” inherent in post-Soviet jurisprudence and the identification of ontological and analytical criteria for classifying the types of understanding of law (natural law, positivist, sociological) as the basis for further convergence of post-Soviet and Western experience of understanding of law. Further, the meaning of the concept of validity of law in its social, moral and legal varieties for understanding the nature of law in general and the corresponding types of such understanding are revealed. In the final part, attention is drawn to the practical aspects of the study of the nature of law, carried out in the context of “extraordinary cases” existing on the verge of law and un-law. Further analysis reveals the methodological possibilities of comprehending the concept of law through the correlation with the counter-concept of “un-law” using examples: post-Soviet discussions about the relationship between law and statute, legal and non-legal law; Hegel’s concept of right and non-right; contemporary non-positivist approach by Robert Alexy in accordance with the criterion of the “limiting border” of law according to the Radbruch formula. The conclusions summarize the provisions on the general and distinctive features of the “discourse of the nature of law” and “discourse of understanding of law”, determine the prospects for their rapprochement.

scholarly journals Metaphenomena in Law: the Structure, Elements, Methodological Aspects, Optimization of Interaction between Theoretical and Meta-Theoretical Levels

Lex Russica ◽  
2021 ◽  
pp. 57-66
Author(s):  
V. V. Shakhanov
Keyword(s):  
Scientific Thinking ◽  
Theoretical Level ◽  
Uncertainty Factor ◽  
Legal Science ◽  
Innovative Tool ◽  
Legal Thinking ◽  
Theory Of Law ◽  
Methodological Aspects ◽  
The Relationship ◽  
Different Levels

The science in general and the legal science in particular have different levels of knowledge and cognition: empirical, theoretical, meta-theoretical. Of particular interest is the interaction between theoretical and meta-theoretical levels, as understanding of this process will allow us to approach the understanding of the boundaries of scientific and non-scientific thinking, to distinguish between theory of law and philosophy of law within or beyond the general theory of law. The studies in this field are complicated by the lack of development of metalinguistic means in jurisprudence. Problem issues in this area include the structure of metalinguistic means, their elements, and the relationship with methodology, optimization of interaction between theoretical and meta-theoretical levels. As an innovative tool for studying metalinguistic means, it is possible to use the concept of “boundary of meanings.” Legal phenomena may be influenced by the “boundary of meanings,” in the area of which the uncertainty factor increases. Some phenomena “originate” from the “boundary of meanings,” in connection with which they constantly experience a crisis of self-identification. Blurring of boundaries entails a crisis of self-identification; establishing hard boundaries absolutizes dogmatic principles.The structure of metalinguistic means is represented at two levels: legal metaphenomena of the theoretical level and legal metaphenomena of the philosophical level. Metaphenomena of various levels are in a state of interaction. Philosophical level metaphenomena affect the perception of theoretical level metafenomena; they can correct or significantly alter their content. Metaphenomena of the theoretical level, experiencing crisis states, entail changes in the metaphenomena of the philosophical level (changing the legal paradigms, changing the style of legal thinking, etc.).The study of the issue of optimization of interaction between theoretical and philosophical levels of the legal science with due regard to the heuristic potential of legal metafenomena as a conceptual apparatus of the boundary of meanings combining the theory of law and its philosophy, will allow us to approach the resolution of the question of searching for criteria of scientific and extra-scientific thinking. 

THEORY OF LAW AND PHILOSOPHY OF LAW AS THEORETICAL DISCOURSES: SPECIFICS AND RELATIONSHIP

2020 ◽  
pp. 9-17
Author(s):  
Вадим Леонидович Афанасьевский
Keyword(s):  
Scientific Knowledge ◽  
Scientific Theory ◽  
Theoretical Concept ◽  
Philosophy Of Law ◽  
The West ◽  
Scientific Creativity ◽  
Key Characteristics ◽  
Different Types ◽  
Theory Of Law ◽  
The Relationship

В статье анализируется проблема взаимоотношений философии права и научной теории права. Рассматриваемая проблема стала особенно актуальной в российском образовательном пространстве в связи с введением после длительного перерыва в государственный образовательный стандарт магистратуры по юриспруденции учебной дисциплины «Философия права». Автор статьи в качестве базисного принимает тезис, согласно которому философия права, являясь сферой философской мысли, и теория права как область научного социогуманитарного знания представляют собой разные типы теоретического дискурса. Исходя из этого, в статье выстраивается теоретическая концепция, согласно которой задачей философии права как философского типа мышления является конструирование или экспликация онтологических, эпистемологических, аксиологических, феноменологических оснований для формирования и функционирования научных теоретико-правовых и историко-правовых построений. Для реализации поставленной в статье задачи подробно рассматриваются ключевые характеристики как теории философского типа, так и идеалов, норм и характеристик научного знания. Выявленное различие экстраполируется на взаимоотношение теории права как продукта научного творчества и философии права как конструкции, задающей базовые мировоззренческие смыслы. В качестве примера выработанных философией права и государства оснований научных теорий прогресса, государства, морали и права, автор приводит взгляды мыслителей западноевропейской философской классики: Т. Гоббса, Ж.-Ж. Руссо, И. Канта, Г.В.Ф. Гегеля. Именно их философские концепции предопределили образы теоретико- и историко-правовых учений XVIII, XIX, XX и даже начала XXI в. Таким образом, отношение философии права и теории права выстраивается по «вертикали»: от онтологического основания к возведению теоретико-правовых и историко-правовых научных построений. The article analyzes the problem of the relationship between the philosophy of law and the scientific theory of law. The problem under consideration has become especially urgent in the Russian educational space in connection with the introduction of the Philosophy of Law discipline master's degree in law after a long break. The author of the article takes as the basis the thesis that the philosophy of law, being the sphere of philosophical thought, and the theory of law as a field of scientific socio-humanitarian knowledge are different types of theoretical discourse. Based on this, the article builds a theoretical concept according to which the task of the philosophy of law as a philosophical type of thinking is the construction or explication of ontological, epistemological, axiological, phenomenological grounds for the formation and functioning of concrete scientific theoretical and legal and historical and legal constructions. To implement the task posed in the article, the key characteristics of both a theory of a philosophical type and ideals, norms and characteristics of scientific knowledge are examined in detail. The revealed difference is extrapolated to the relationship between the theory of law as a product of scientific creativity and the philosophy of law as a construction that sets basic philosophical meanings. As an example of the foundations of the scientific theories of progress, state, morality and law developed by the philosophy of law and the state, the author gives the views and thinkers of the West European philosophical classics T. Hobbes, J.-J. Russo, I. Kant, G.V.F. Hegel. It was their philosophical concepts that predetermined the images of theoretical and historical-legal doctrines of the XVIII, XIX, XX and even the beginning of the XXI centuries. Thus, the attitude of the philosophy of law and the theory of law is built along the «vertical»: from the ontological foundation to the construction of theoretical and historical and historical legal scientific constructions.

scholarly journals Music, Politics, and History: An Introduction

2021 ◽  
Vol 60 (2) ◽  
pp. 362-374
Author(s):  
David Kennerley
Keyword(s):  
Sound Studies ◽  
The Body ◽  
Future Research ◽  
Short Article ◽  
Distinctive Features ◽  
Music And Politics ◽  
Introductory Article ◽  
History Of ◽  
Eighteenth And Nineteenth Centuries ◽  
The Relationship

AbstractMusic has been steadily rising up the historical agenda, a product of the emergence of sound studies, the history of the senses, and a mood of interdisciplinary curiosity. This introductory article offers a critical review of how the relationship between music and politics has featured in extant historical writing, from classic works of political history to the most recent scholarship. It begins by evaluating different approaches that historians have taken to music, summarizes the important shifts in method that have recently taken place, and advocates for a performance-centered, contextualized framework that is attentive to the distinctive features of music as a medium. The second half examines avenues for future research into the historical connections between music and politics, focusing on four thematic areas—the body, emotions, space, and memory—and closes with some overarching reflections on music's use as a tool of power, as well as a challenge to it. Although for reasons of cohesion, this short article focuses primarily on scholarship on Britain and Ireland in the eighteenth and nineteenth centuries, its discussion of theory and methods is intended to be applicable to the study of music and political culture across a broad range of periods and geographies.

Interpretivism in Jurisprudence: What Difference Does the Philosophy of History Make to the Philosophy of Law?

2007 ◽  
Vol 1 (3) ◽  
pp. 365-393
Author(s):  
Naomi Choi
Keyword(s):  
Philosophy Of History ◽  
Legal Positivism ◽  
Legal Authority ◽  
Philosophy Of Law ◽  
Historical Interpretation ◽  
Interpretive Theory ◽  
Legal Positivist ◽  
Points Of View ◽  
Theory Of Law ◽  
Positivist Approach

AbstractTo answer the question of what difference the philosophy of history makes to the philosophy of law this paper begins by calling attention to the way that Ronald Dworkin's interpretive theory of law is supposed to upend legal positivism. My analysis shows how divergent theories about what law and the basis of legal authority is are supported by divergent points of view about what concepts are, how they operate within social practices, and how we might best give account of such meanings. Such issues are widely debated in the philosophy of history but are often overlooked in jurisprudential circles. When the legal positivist approach to meanings is contrasted with Dworkin's interpretivism it is clear that what is needed is an alternative to both, in the form of what we might call "historical meanings" and "historical interpretation". While Dworkin's interpretivism gets it right that legal positivism is an inadequate philosophy of law to the extent that it is committed to a "criterial semantics" view of concepts, this paper argues that post-positivism in the philosophy of law need not entail a normative jurisprudence, as Dworkin would have it.

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.

Language contact and multilingualism in Iran

2018 ◽  
Author(s):  
Shahrzad Mahootian
Keyword(s):  
Language Contact ◽  
Historical Perspective ◽  
Language Maintenance ◽  
Language And Identity ◽  
General Description ◽  
The Status ◽  
Bilingual Communities ◽  
The Relationship

Throughout its history, Iran has been a richly multilingual nation, with documented evidence reaching back nearly three millennia. Today, estimates of the number of languages spoken in modern Iran vary, with numbers ranging from fifty-four to seventy-six living languages. This chapter presents a general description of societal bilingualism, how bilingual communities come about, the relationship between language and identity in multilingual contexts, and how best to describe the kind(s) of bilingualism found in Iran, including the use of English. The chapter then turns to bilingualism in Iran from a historical perspective, with the goal of understanding why there are so many languages in present-day Iran. Finally, it addresses the status of English in pre- and post-revolutionary Iran and issues of language maintenance.

scholarly journals MORALITY, LAW AND CONFLICTING REASONS FOR ACTION

2012 ◽  
Vol 71 (1) ◽  
pp. 59-85 ◽  
Author(s):  
Peter Cane
Keyword(s):  
Moral Reasoning ◽  
Practical Reasoning ◽  
Broad Sense ◽  
Moral Reasons ◽  
Reasons For Action ◽  
Human Conduct ◽  
Morality Plays ◽  
Moral Assessment ◽  
The Concept Of Law ◽  
The Relationship

AbstractIn The Concept of Law, H.L.A. Hart suggested that four formal features of morality distinguish it from law: importance, immunity from deliberate change, the nature of moral offences and the form of moral pressure. On closer examination, none of these supposed features clearly distinguishes morality from law, at least in the broad sense of ‘morality’ that Hart adopted. However, a fifth feature of morality mentioned by Hart – namely the role that morality plays in practical reasoning as a source of ultimate standards for assessing human conduct – does illuminate the relationship between law as conceptualised by Hart and morality variously understood. Because morality has this feature, law is always subject to moral assessment, and moral reasons trump legal reasons. It does not follow, however, that law is irrelevant to moral reasoning.

scholarly journals Marxism as Spinozism? One episode in the history of Soviet philosophy

2021 ◽  
Author(s):  
Maja Soboleva
Keyword(s):  
Historical Context ◽  
The Other ◽  
Soviet Philosophy ◽  
Methodological Principle ◽  
Marxist Philosophy ◽  
History Of ◽  
The Relationship ◽  
Theoretical Foundations

AbstractThis paper seeks to reconstruct philosopher Aleksandr Bogdanov’s approach to the philosophy of Spinoza in the context of the debate against Plekhanov. I demonstrate that the Soviet interest in Spinoza’s theory has never been purely historical, but rather, it served an important function in developing the theoretical foundations for Marxist philosophy. However, Bogdanov was one of only a very few who objected strongly to Plekhanov’s attempt to relate Spinoza’s philosophy to Marxism in a direct way. Two principles underlie Bogdanov’s critique: one being methodological, the other—systematic. The methodological principle has a hermeneutical character, since it demands that we treat historical concepts by taking into account their context and their changes during the time. According to Bogdanov, failing to fulfil this principle results in the dogmatization and instrumentalization of philosophy, and transforms it into political doctrine. The systematic principle concerns Bogdanov’s radical rethinking of the relationship between extension and thought. I argue that by rethinking Spinoza’s concepts in the framework of “ideo-empirical parallelism”, Bogdanov develops his own theory of cognition, which he called “empiriomonism”. When considered in historical context, I argue that these debates can serve as a window into the foundational role the Spinoza’s philosophy has played in the formation of different versions of Russian Marxism, as well as in the development of Russian Marxism in general.

scholarly journals Kilka uwag o responsywności prawa podatkowego na przykładzie urzędowych interpretacji prawa podatkowego

2019 ◽  
Author(s):  
Jarosław Kola ◽  
Przemysław Pest
Keyword(s):  
Social Relationships ◽  
Legal System ◽  
Law And Society ◽  
Tax Law ◽  
Tax Administration ◽  
Legal Systems ◽  
Basic Functions ◽  
Three Stages ◽  
The Concept Of Law ◽  
The Relationship

The article is an attempt to look at the development of Polish tax law through the prism of the concept of law development proposed by Ph. Selznick and Ph. Nonet. In the study Law and Society in Transition. Towards Responsive Law they distinguished three stages of evolution of legal systems: repressive, autonomous and responsive. The focus of the article is on the institution of the official interpretation of tax law, because an analysis of the transformation of the legal system allows to capture trends that are present in the development of its individual institutions as well as social relationships among its recipients. By indicating the evolution of official in terpretations of tax law in its two basic functions – those of informing and those of guaranteeing (protective) – the authors point to a wider context of the development of tax law to show whether and how changes in the normative regulation of official interpretations of tax law may affect the shape of the relationship between a tax payer and tax administration, where the perspective of the analysis of demand is the responsiveness of law. An analysis of the regulation of an official interpretation of tax law leads to the conclusion that due to the assigned ratio legis this interpretation must characterise them as corresponding mainly to the autonomous model. At the same time a responsive model of law does not undermine the autonomous model attributes. Thus if we were to accept that the provision of interpretation corresponds to the autonomous model, it would not be possible to note that it also has attributes that make it a responsive model. Irrespective of the fact that there is no element of negotiation, it is based on the interaction between the taxpayer and the tax administration. As part of this interaction, tax administration responds to the reported social need in terms of the ambiguity of law, which de iure – not least because of the possibility of bringing an action against the content of interpretation – takes place in the framework of a communication situation that is free from external coercion.

The Methodology of Legal Philosophy

2016 ◽  
Author(s):  
Alex Langlinais ◽  
Brian Leiter
Keyword(s):  
Conceptual Analysis ◽  
Linguistic Analysis ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Moral Norms ◽  
Social Constructs ◽  
Social Rule ◽  
The Concept Of Law ◽  
The Relationship ◽  
Concept Of Law

This article examines methodological debates in legal philosophy by focusing on two (related) methodological claims in H. L. A. Hart’s 1961 book, The Concept of Law: that Hart’s theory is both general and descriptive, and an exercise in both linguistic analysis and descriptive sociology. It considers what these claims reveal about Hart’s theoretical ambitions and methodological commitments, and what light they shed on debates in legal philosophy since then. In particular, it discusses the most important elements of Hart’s theory, such as the union of primary and secondary rules in law, the “rule of recognition” as a social rule, and the relationship between legal and moral norms. It also explores several objections to Hart’s approach to the problems of legal philosophy, including one that questions the fruitfulness of the methodology of conceptual analysis. Finally, it analyzes the argument of Hart and all legal positivists that legal systems are social constructs.

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