scholarly journals methodological conflict between theory and philosophy of law

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey S. Shestopal ◽  
Elena A. Kazachanskaya ◽  
Svetlana V. Kachurova ◽  
Evgeniy V. Kachurov

The subject of this research is the recently intensified competition in modern jurisprudence of two equally respectable scientific disciplines: philosophy of law and theory of law. The goal is to demarcate the meaning of these concepts. Their ontological status (essential significance) in relation to the existence of the law, the reflection of which they are, is also considered. Based on analysis of the existential criticism of the dominant forms of modern ideology, it is proved that the existing theories of law depend on these forms. A stable tendency in modern philosophy to return legal science to the origins of philosophical knowledge of legal reality is stated.

2019 ◽  
Vol 1 (1) ◽  
pp. 17
Author(s):  
Aditya Yuli Sulistyawan

<p class="IABSSS">The dominance of legal positivism in thought and law enforcement is a reality. Saintism of legal science presents a law that is conceptualized as something that exists in sensory terms, along with its straightforward, rational, and objective nature. Law is always requested objectively. Objectivity is done by freeing the subject's mind to the legal reality that already exists as an object. Therefore, various legal cases such as the case of Asyani, Rasminah, Minah and others, are things that are easily proven as violating the law because it is a violation of the text of the article of law. Such a way of law, is now starting to become a public concern. So, when objectivity begins to be questioned, that's when the real subjectivity of asking begins to be considered - and this will be explained [only] in the study of legal philosophy, especially paradigmatic studies. This paper will discuss the possibility of subjectivity in law, which will be presented in the paradigmatic study.</p>


Lex Russica ◽  
2020 ◽  
Vol 1 (1) ◽  
pp. 88-117
Author(s):  
Yu. A. Vedeneev

The law exists in the form of institutions and in the form of representations of institutions, since the representation of something (phenomenon) has a conceptual dimension in the representation of something (concept). Representations of law and representations of law are two aspects of the expression and manifestation of the general legal reality. This, in fact, leads to a fundamental dilemma in determining the subject of legal science. This is the science of law or the science of legal science. Given that the concept of law is a theory of law developed into a system of definitions, the practical language of law finds itself in the theoretical language of jurisprudence, and vice versa. The languages in which the law operates, and the languages in which the phenomenon of law is interpreted, constitute the general object and subject of jurisprudence.Jurisprudence is a conceptual part of legal reality, both an object and a subject of legal science. The evolution of jurisprudence in the cultural-historical logic of changes in its subject and methods is the basis for changes in its disciplinary structure and connections in the general system of social and political sciences. Each cultural and historical epoch of the existence of law corresponds to its own grammar of law and its own epistemology of law, that is, its own analytical language and disciplinary format of legal knowledge. The law exists in the definitions of its concept. The concept of law has both an ontological and epistemological status. One thinks of law because it exists, and one understands the law because it is defined. Each tradition of understanding the law can be conceptually seen in the phenomenon of law that other traditions of legal understanding do not see or do not notice. The history of the development of the concept of law (conceptualization of law) contains the history of the development of legal institutions (institutionalization of law). Both components of legal reality — objective and subjective grounds and conditions for the emergence and development of the phenomenon of law live in the framework definitions of their social culture, its language and discourse. That is, they live in historical forms of awareness and understanding of one’s own law — from the law indicated in rituals, myths, signs and symbols, to the law indicated in canonical texts, doctrines and concepts; from the law of disciplinary society to the law of network communities; from the law of political domination and bureaucratic management to the law of civil communications and network agreements.


2011 ◽  
Vol 24 (2) ◽  
pp. 441-453 ◽  
Author(s):  
Pavlos Eleftheriadis

Austin’s theory of theory of law is simple: the law follows the pattern of power; the sovereign gives commands and obeys none; the subject obeys commands; the law consists in only those commands that directly or indirectly emanate from the sovereign. Nevertheless, Austin’s theory of sovereignty is not simple at all. When we look at the relevant chapters closely, it becomes evident that Austin has two rival theories of sovereignty, one for a single person and one for a ‘determinate body’. It is only the latter that allows him to say that sovereignty lies, ultimately, with the electors, the strange conclusion of his book. But Austin’s second theory of sovereignty is not consistent with his own theory of law. Austin’s faces a dilemma. Is law - as most people take it to be - a public order of standards of conduct aiming to guide behaviour? If so, sovereignty ought to be public and intelligible. If not, sovereignty can remain a mystery to those living under it (accessible only after the event by the expert legal philosopher). For the latter reading, law and sovereignty are ‘normatively inert,’ as some of Austin’s followers claim today. But Austin does not agree with his modern followers. Austin’s second theory of sovereignty is aimed at satisfying a practical requirement of law and jurisprudence, i.e. to be in the position of publicly guiding conduct.


2018 ◽  
Author(s):  
S.I. Zakhartsev ◽  
V.P. Salnikov

The book is devoted to some actual problems of philosophy and philosophy of law. It discusses the problem of monism-pluralism in philosophy and philosophy of law, criticizes philosophy of postpositivism and postmodernism, and invites to return to dialectic as a universal global methodological basis of scientific cognition. On the basis of dialectics in the book deals with law. It explores the subject of philosophy of law, ontology and epistemology of law, methodology and content of law, legal consciousness and its deformation, problems of legal science and their solutions, legal progress and etc. It substantiates the theory of comprehending study of law. It proposes new ideas and suggestions. Monograph is addressed to researches in the field of philosophy and philosophy of law, lawyers, teachers, postgraduates, students, and also to everyone who are interested in problems of philosophy and law.


Author(s):  
Mikhail Yur'evich Osipov

Correlation between the concepts of &ldquo;novel&rdquo; and &ldquo;innovation&rdquo; in law is one of the topical problems faced by the modern legal science. Its relevance is substantiated by the fact that the improper use of one or another term in legal science (for example, the term "&rdquo;innovation&rdquo; instead of the term &ldquo;novel&rdquo; may lead to misperception and complicate the research of these legal phenomena. The goal consists in establishing correlation between the concepts of &ldquo;novel&rdquo; and &ldquo;innovation&rdquo;, as well as the criteria for their classification based on the analysis of the essence of these two concepts. The subject of this article is such principles of the novels and innovations in the legal system that impact the characteristics of these legal phenomena. In the course of research, it was determined that law incorporates both, novels and innovations, which should not be confused, and correlate with each other as a whole (legal novels) and as a part (legal innovations). The article provides classification of legal novels and legal innovations in accordance to various criteria, namely depending on the type of legal process, form of expression (of novels and innovations in law) and (legal novels and innovations). The latter are distinguished by the fact that they are reflected in the legal norms. At the same time, innovations in the law and legal system imply the fundamentally new and (or) significantly improved processes that take place in the legal system, as well as their results. Novelties, in turn, imply any amendments to the law and the legal system.


Author(s):  
S. Shcherbak ◽  

The article analyzes the existing positions of scientists of general theoretical jurisprudence on legal laws as a fundamental and rather complex scientific category, which is undeservedly "forgotten" in our time, the interest in which is determined by the needs of practice and the essence of scientific knowledge. Based on the conceptual principles of general theoretical science, the branch concept of regularities as a subject of science of executive process is offered, taking into account the necessity of development of doctrinal provisions of science of executive process. It is proved that the formation and formation of the science of the executive process is ahead of the emergence of the relevant branch of law; the place of the executive process in the legal system continues to be considered, because the process of forming the branch of law must be complex and long and thus requires justification and awareness. The essence and features of legal regularities in the general theory of law are revealed, and also their display and value in the course of execution of judicial decisions and decisions of other bodies are defined; such regularities as a subject of science of executive process are specified. It has been clarified that the decisions and decisions of other bodies, have natural connections and relations concerning: creation, actions and improvement of the legislation regulating process of execution of court decisions and decisions of other bodies; practices of application of executive procedural norms (including rules of law enforcement in typical situations, overcoming gaps); use of historical experience of execution of court decisions and decisions of other bodies; use of foreign experience of enforcement of decisions of jurisdictional bodies; the provisions of international legal acts on enforcement (expediency of harmonization and implementation, which will require changes to national legislation); methodological problems of the science of the executive process. Characterization and classification of branch regularities, depending on criterion of sphere of action in science, of executive process on five kinds are given among which are: natural connection of the simplest phenomena – the executive document, executive procedural legal relations, executive actions; natural connection of complex phenomena, such as the system of executive procedural legislation, the model of the executive process, the methodology of the executive process; regularities inherent in the executive process as a whole (principles of the executive process, stages of the executive process, subjects of the executive process); the natural connection of the executive process with the economy, sociology and other social spheres. An assessment of new regular connections that arises in the modern executive process, taking into account the signs of dynamic patterns and examples of transformation of patterns that were manifested in the Soviet times and operate in modern times, in particular, fundamental regularities, (which are succession in law, the stability of the legal tradition), and the objective need for formal certainty in law are fragmentarily outlined in the example of the science of executive process, because the executive process was separated from the science of civil procedure and did not absorb its succession, but caused new, its own patterns, which arose simultaneously with the new phenomenon of legal life, and thus acquired a set of legal relations that are not embodied with justice (while the modern prototype of the executive process is associated "with a drone and tow truck", not with Themis, the goddess of justice). In turn, the subject of the science of executive process is proposed to understand the objectively determined, constant, necessary, and causal links that provide knowledge of the process of execution of court decisions and decisions of other bodies as a legal phenomenon, as well as reflect its deep, essential properties. The architecture of the subject of science should be determined primarily by the structure of the relevant law, in this case by the Law of Ukraine "On Enforcement", a significant disadvantage of which is the systematic revision and reformatting of its provisions by adopting the law or its new Version changes simultaneously the conceptual bases of activity of executors and considerably complicates formation of theoretical bases of executive process. It is substantiated, that coincidences, provided that they are repeated, can become a trend, and trends, in turn, can grow into a pattern. The importance of regularities lies in the fact that they are not only the subject of science of the executive process, but also have methodological significance for the executive process as a young branch of legal science, because it is on the basis of regularities that basic scientific provisions become especially relevant in the emergence and development of new branches of legal science. The paper identifies existing trends such as anthropologization, globalization and deformation and reveals them on the example of the executive process; it outlines the content of coincidences in the science of executive process. The need for further scientific development of both the actual legal laws and industry laws of the science of the executive. Process is predicted, taking into account the immensity of the category of laws and giving to it the weight at the present stage of development of the science of the executive process.


Author(s):  
Artem Aleksandrovich Savenkov

The subject of this research is the problem of understanding and interpretation of the meaning and designation of one of the key concept of modern legal lexicon &ndash; &ldquo;legitimacy&rdquo;. Legitimacy became an attribute of the current scientific paradigm of legal thinking, because broadening the area of application, it is used as a certain standard of highest legality, often perplexing comprehension of the problems of legal theory, as on etymological level its leans only on one of the Latin versions of the word &ldquo;legal&rdquo;. In the same platitude, legitimate legality and legal legitimacy are a common tautology, which in the context of theory of law and philosophy of law, insistently dictates the necessity to clarify this term and definition. Research methodology suggests the analysis of the problem of legality-legitimacy from the perspective of differentiating legal and other disciplinary approaches: political scientific, sociological, etc. The novelty of this study consists in the problematic-critical analysis of the concept of &ldquo;legitimacy&rdquo; on the context of theory of law and philosophy of law. The conducted research demonstrates that the problem of legitimacy represents is a terminological substitution within the framework of legal-positivistic doctrine for the so-called not &ldquo;purely&rdquo; legal aspects: sociological, psychological, political scientific,&nbsp;and other.&nbsp;


Author(s):  
Larysa Udovyka

The article is devoted to the study of the formation of the theory of the legal system in legal science. The third stage in the development of the theory of law is characterized system, which begins at the beginning of the second decade of the XXI century. and continues to this day. t this stage, the interpenetration of ideas, provisions, conclusions about the development of the legal system within the legal sciences and areas that study the legal systems: the theory of state and law, comparative law, international law, philosophy of law is increasingly being traced. This stage is characterized by the search for answers to the question of approximation of the domestic legal system to European law; the mechanism of interaction between the national legal system and the EU legal system; features of systematization and unification of legislation at the stage of legal integration; directions of transformation and modernization of the legal system of Ukraine in the context of European integration and globalization, etc. The interpenetration of ideas and provisions largely reflects the objective process of strengthening and deepening the interaction of national and international legal systems, the inability to answer the vast majority of questions that arise in this regard, limited only to national or international law In recent years, the legal system of Ukraine, along with the traditional ones, has faced fundamentally new problems caused by external factors, including such as the establishment and consolidation of European foreign policy priorities, the search for effective legal means to counter threats to independence, national sovereignty, territorial integrity, territorial integrity, territorial integrity, energy threats, protection of citizens' rights violated as a result of annexation of Crimea, occupation in eastern Ukraine. Solving these and other problems is possible only through a comprehensive, systematic understanding, based on the achievements of the general theory of law, comparative law, international law, philosophy of law with the use of new approaches and methods, that is, within the framework of the general (universal) theory of law. The peculiarities of the development of legal science at this stage at the present day raise the question of the need to form a universal (general) theory of law as a conceptual basis of the theories of national and international law.


Author(s):  
Roman V. Aliiev ◽  

The article considers the problem of general awareness of the legally significant properties of military offences (crimes, misdemeanours), their relationship with other types of offences, which is actually an urgent task, especially for the science of military law and the integration of legal science � general theory of law. Based on the analysis of terminological and conceptual aspects of military offences (crimes, misdemeanours), their own typology, legal features and features of the composition, the author of the article proposes their generalized definition as �military torts�. The study of the essence and content of military tort as a phenomenon of modern legal science, as well as ways to prevent, detect and stop it, is a special, special law enforcement tool within the leading institute of military law. Further study of the phenomenon of military tort provides an opportunity to form an independent complex scientific field - military tort. It is proved that the causes and conditions of offences in the Armed Forces of Ukraine involve a complex set of factors, processes and phenomena. At the same time, they are characterized by a number of features due to the specifics of military service and the activities of troops (forces). For example, the activities of personnel, internal order, military life and other military-public relations, which are regulated as much as possible by the rules of military statutes. In addition to military statutes, military-public relations are regulated by other rules of law, for example, the scope of criminal law is much broader � servicemen are responsible for committing both general crimes and military criminal offences. Considering the subject of research, which is a �military tor� as a phenomenon of modern legal science, it should be noted that in the theory of law and in the practice of personnel in the direction of legal support of military formation used phrases such as �military administrative offences�, �criminal offences�. Against the established order of military service (military criminal offences)�, �war crimes�, �military and disciplinary offences in the military sphere�, �criminal order or instruction �, etc. Therefore, there is a problem in determining the meaning of terms, and there are several reasons for this. The first, classic - the definition of the term allows you to outline the subject of research and discussion, the range of related problems. Another is the problem of the spread of offences in the military sphere, i.e. ensuring the national security and defense of Ukraine, due to its specificity is global (phenomenal) and therefore can be most effectively solved only if joint efforts are made at both international and national levels. Ensuring their effective interaction directly depends on a consistent understanding and interpretation of terminology in the direction of the study of lawful behaviour or the causes and conditions of deviant �tort� behaviour of service members. Thus, we see that the epistemological processes of formation of military torts as a phenomenon of scientific and legal category is characterized by a certain inconsistency, ambiguity and fragmentation, generated by situational aspects of necessity. However, we can determine that a military tort is a set of illegal (anti-social) acts (crimes or misdemeanours) provided by the current criminal legislation of capable subjects of military-public relations, encroaching on the foundations of national security, organization of the Armed Forces of Ukraine and public order. Understanding and understanding of the acquired knowledge should be the basis for improving the institution of legal responsibility of servicemen in the military sphere as a fundamental means of protection, mechanism, guarantor, designed to ensure regulatory, protective and protective function of military law, without which the existence and development of modern Ukrainian army is impossible.


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