scholarly journals O Historicismo Jurídico do Pensamento Montesquiano em Friedrich Carl von Savigny e suas Consequentes Implicações no Materialismo Histórico Marxista

2013 ◽  
Vol 8 (1) ◽  
Author(s):  
Matheus Zmijevski Custódio
Keyword(s):  
Karl Marx ◽  
Historical Materialism ◽  
Legal Consciousness ◽  
Moral Law ◽  
Historical School ◽  
Positive Law ◽  
The People ◽  
The Social ◽  
State And Society ◽  
The Law

Resumo: Em uma época na qual a especulação político-jurídica ainda estava submersa em abstrações metafísicas, e em que a história e a lei positiva eram desprezadas, o pensamento de Montesquieu anunciou um direito com o propósito de ser fidedigno às reais condições em que a sociedade surge, existe e evolui. Montesquieu não acreditava que a infinita diversidade de leis e costumes fosse unicamente produzida pela fantasia humana, ou seja, uma obra poiética sem relação com a realidade. Em seus tratados – mais precisamente, em “Do Espírito das Leis” –, ele defende a consideração da história como fonte de conhecimento para captar o porquê das condutas humanas – que se dá conforme as circunstâncias – e examinar a adequação de suas leis a estas. Posteriormente, à semelhança de Montesquieu – inclusive, resgatando-lhe conceitos, tais como o do “espírito geral da nação” –, adveio a chamada “Escola Histórica do Direito Alemã”, a professar o ordenamento jurídico como algo historicamente identificado, bem como exclusivamente próprio de um determinado povo. Friedrich Carl von Savigny, um dos maiores expoentes dessa escola, sustentava que o direito vive na prática e no costume, que são a expressão imediata da “consciência jurídica popular”. E isto seria devido ao fato de que todo povo tem um espírito, que se reflete numa numerosa série de manifestações, de modo que: moral, direito, arte, linguagem etc. são todos produtos espontâneos e imediatos desse espírito popular (o “Volksgeist”). Por sua vez, Karl Marx, que fora aluno de Savigny, acabou influenciado por muitos dos temas por este debatidos (tais como a propriedade), e foi-lhe fiel quanto ao princípio de que o direito procede do social – colocando-se, pois, nas mesmas diretrizes ponderativas empregadas por Montesquieu. No entanto, a perspectiva histórica de Marx possuía um sentido mais funcional do que a de seu antigo professor, não se reduzindo àquilo que considerava uma reverência exagerada às origens. Ele acaba por discordar da concepção de evolucionismo jurídico aplicada por Savigny (mais “continuista”), evidenciando a necessidade de lutar-se contra leis hostis aos reais costumes do povo, para, então, no âmbito do Estado e da sociedade, sanarem-se as desigualdades acarretadas pelo manejo legal oportunista.                                                                                                                       Palavras-Chave: Do Espírito das Leis. Espírito Geral da Nação. Escola Histórica do Direito Alemã. Consciência Jurídica Popular. Materialismo Histórico. Abstract: In an era in which the legal-political speculation was still submerged in metaphysical abstractions, and that history and positive law were neglected, the thought of Montesquieu announced a law in order to be authentic to the real conditions in which society emerges, exists, and evolves. Montesquieu did not believe that the infinite diversity of laws and customs were solely produced by human fantasy, or a poietic work with no relation to reality. In his treaties – more accurately, in “The Spirit of the Laws” – he argues for the consideration of history as a source of knowledge to grasp the reason of human behavior – which occurs according to the circumstances – and examine the adequacy of its laws to these. Later, like Montesquieu – even recovering his concepts, such as the “spirit of the nation” – came the so-called “German Historical School of Law,” professing the legal order as something historically identified and exclusively belonging to a particular people. Friedrich Carl von Savigny, one of the greatest exponents of this school, sustained that the law lives in the practice and custom, which are the immediate expression of “popular legal consciousness.” And this would be due to the fact that every people has a spirit, which is reflected in a large number of events, so that: moral law, art, language, etc. are all spontaneous and immediate products of this popular spirit (the "Volksgeist"). In his turn, Karl Marx, who was a pupil of Savigny, were influenced by many of the topics discussed by Savigny (such as property), and remained faithful to him in the principle that the law comes from the social – placing himself, therefore, under the same guidelines employed by Montesquieu. However, the historical perspective of Marx had a more functional sense than that of his former teacher, because it’s not reduced to what he considered an exaggerated reverence to the origins. After all, he disagreed with the conception of legal evolution applied by Savigny (more "continuist"), highlighting the need to fight against laws hostile to the actual customs of the people, and thereby, in the realm of State and society, eliminate inequalities brought about by the opportunistic legal management. Keywords: The Spirit of the Laws; General Spirit of the Nation; German Historical School of Law; Popular Legal Consciousness; Historical Materialism.

scholarly journals PEMBENTUKAN HUKUM DALAM PERSPEKTIF PEMBARUAN HUKUM

2012 ◽  
Vol 1 (3) ◽  
pp. 307
Author(s):  
Zainal Arifin Hoesein
Keyword(s):  
Rule Of Law ◽  
Social Economic ◽  
Methodological Approach ◽  
Legal Reform ◽  
The Rule Of Law ◽  
The Public ◽  
The People ◽  
The Social ◽  
The Law ◽  
Methodological Aspects

<p>Materi muatan hukum selayaknya mampu menangkap aspirasi masyarakat yang tumbuh dan berkembang bukan hanya yang bersifat kekinian, melainkan sebagai acuan dalam mengan Ɵ sipasi perkembangan sosial, ekonomi, budaya dan poli Ɵ k di masa depan. Norma hukum pada dasarnya inheren dengan nilai-nilai yang diyakini oleh masyarakat, tetapi daya kekuatan keberlakuan hukum, Ɵ dak dapat melepaskan diri dari kelembagaan kekuasaan, sehingga hukum, masyarakat dan kekuasaan merupakan unsur dari suatu tatanan masyarakat. Oleh karena itu, Hukum Ɵ dak sekedar dipahami sebagai norma yang menjamin kepasa Ɵ an dan keadilan tetapi juga harus dilihat dari perspek Ɵ f kemanfaatan. Oleh karena itu, maka pembentukan hukum dalam perspek Ɵ f pembaruan hukum harus difokuskan pada dua hal yaitu, sistem hukum dan budaya hukum. Tulisan ini akan membahas bagaimana idealisasi peraturan perundang-undangan; bagaimana fungsi peraturan perundang-undangan dalam pembangunan hukum; dan bagaimana pendekatan metodologis terhadap pembentukan hukum. Dari berbagai pembahasan tersebut disimpulkan bahwa pembentukan hukum dalam perspek Ɵ f pembaharuan hukum, di samping harus memperha Ɵ kan aspek metodologis, juga harus merujuk dan meletakkan norma hukum dalam kesatuan harmoni ver Ɵ kal dengan aspek teologis, ontologis, posi Ɵ vis Ɵ k dan aspek fungsional dari suatu norma hukum.</p><p>The substance of the law should be able to capture the aspira Ɵ ons of the people who grow and develop not only be present, but as a reference in an Ɵ cipa Ɵ on of the social, economic, cultural and poli Ɵ cal future. The rule of law is essen Ɵ ally inherent to the values that are believed by the public, but the validity of the power of the law, not to break away from the ins Ɵ tu Ɵ onal power, so the law, society and power is an element of a society. Therefore, the law does not merely understood as a norm that ensures certainty and jus Ɵ ce but also to be seen from the perspec Ɵ ve of expediency. Therefore, the legal establishment in the perspec Ɵ ve of legal reform should be focused on two things, namely, the legal system and legal culture. This paper will discuss how the idealiza Ɵ on of laws, how the laws func Ɵ on in the development of the law, and how the methodological approach to the legal establishment. It was concluded that the forma Ɵ on of the law in the perspec Ɵ ve of legal reform, in addi Ɵ on must pay a Ʃ en Ɵ on to methodological aspects, should also refer to and put the rule of law in the unity of ver Ɵ cal harmony with aspects of the theological, ontological, posi Ɵ vist and func Ɵ onal aspects of the rule of law.</p>

scholarly journals Different Approaches to the Social and Psychological Support for Adolescents in Conflict with the Law: Russian and Foreign Experience

2014 ◽  
Vol 6 (3) ◽  
pp. 51-60
Author(s):  
A. Velikotskaya ◽  
A.V. Ivanova
Keyword(s):  
Juvenile Delinquency ◽  
Juvenile Offenders ◽  
Restorative Justice ◽  
Support System ◽  
Psychological Support ◽  
Valuable Resource ◽  
The Social ◽  
State And Society ◽  
The Law ◽  
Effective Conditions

The article is devoted to the socio-psychological support and re-socialization of adolescents who are in conflict with the law. Effective conditions for social and psychological support and re-socialization of adolescents in the situation of the offense, according to the authors, is directly related to the response mechanisms of the state and society on juvenile delinquency. Therefore, this article focuses on the analysis of different ways to respond to juvenile delinquency in the Russian and foreign governmental systems. A separate section is devoted to the practice of restorative justice, which is implemented on the border of the legal, social, educational and psychological areas and is an important component of social and psychological support to the teenager in the situation of the offense and a valuable resource to support system and creating conditions for the re-socialization of juvenile offenders.

scholarly journals The Problem of the Stability of the Social System in Ancient Indian Philosophy

Discourse ◽  
2021 ◽  
Vol 7 (5) ◽  
pp. 45-54
Author(s):  
V. V. Tuzov ◽  
R. R. Mazina
Keyword(s):  
Social Relations ◽  
Social System ◽  
Indian Philosophy ◽  
Ruling Class ◽  
The People ◽  
The Social ◽  
The Law ◽  
Philosophical Texts ◽  
Analysis System ◽  
The Stability

Introduction. The purpose of the article is to show the effect of the law of correspondence as a factor of stability of the social system and the relevance of this problem for ancient Indian philosophy. The problem of the stability of society was not directly considered in ancient Indian philosophy or in modern literature, especially through the prism of the law of correspondence.Methodology and sources. The work uses content analysis, system approach, dialectics and the concept of self-organization. In addition, the main analysis of the problem of stability in ancient Indian philosophy is carried out on the basis of the law of correspondence between the real relations that connect people at a given moment and the essence of the “social”. This law was formulated and proposed by V.V. Tuzov. The essence of the “social” could be conditionally expressed through the concepts of “equality”, “humanism”, mutual assistance, “justice”. Real relations may deviate from the essence, but by a certain amount, a measure. Going beyond the limits of the measure deprives the system of stability, and it becomes uncontrollable. The main source of analysis is the academic edition of the text Arthashastra (ancient Indian political and economic treatise), as well as “History of political and legal doctrines”, “Development of ideas about management in philosophical thought”.Results and discussion. The article analyzes the ancient Indian philosophical texts to reveal in them, in a latent or explicit form, the concern of philosophers with the problem of maintaining the stability of the state and society. Attention is focused on the fact that there is a need to observe the law of conformity in the recommendations for rulers on how to govern the people.Analysis of the main source of ancient Indian philosophy, which deals with the problems of governance, shows that the recommendations to the king, which are set forth by the author of Arthashastra Kautilya, imply, in the end result, the need to maintain a balance of interests between the ruling class and the people, that is, to observe the measure for which society loses its stability due to for the impoverishment of the people. In other words, in the management recommendations, the law of conformity, which was discussed above, appears in a latent form.Conclusion. The problem of the stability of the social system in a class society was and remains extremely relevant. The philosophical law of correspondence between real relations and the essence of social relations, which ensures the stability of society while observing the measure, requires justification. Since the principle of forming relationships and the nature of interaction has remained unchanged for centuries, the reflections of ancient philosophers on management, on the structure of society, on the relationship between different groups in it, and on the interaction of interests, on the one hand, confirm the operation of this law, on the other hand, could be useful for modern management.

Politik Hukum Pengaturan Organisasi Sayap Partai Politik dalam Hukum Positif Indonesia

2020 ◽  
Vol 3 (2) ◽  
pp. 17-32
Author(s):  
Putra Perdana Ahmad Saifulloh
Keyword(s):  
Political Parties ◽  
Significant Role ◽  
Research Method ◽  
The Political ◽  
Conceptual Approach ◽  
Positive Law ◽  
The People ◽  
The Law

This article aims to answers the problem of organizing the Political Parties Wings in Positive Law. This research used a normative juridical research method, with a statutory, historical, and conceptual approach. The result of this research shows that Legal Politics of the Wing of Political Parties in the Law on Political Parties in Indonesia is to strengthen political parties in carrying out broader articulation and aggregation of interests. As well as imparting significant role of political parties in carrying out their functions to connect with the people directly, especially in bridging and fighting for the people interests.

Marxist Legal Thought in Poland

Slavic Review ◽  
1967 ◽  
Vol 26 (3) ◽  
pp. 382-394 ◽  
Author(s):  
Grzegorz Leopold Seidler
Keyword(s):  
World War Ii ◽  
Legal Theory ◽  
Legal Consciousness ◽  
World War ◽  
Legal Norms ◽  
The Past ◽  
Positive Law ◽  
The Law ◽  
The Relationship ◽  
Practical Implications

Since World War II, Polish legal theory has focused principally on the sociological aspect of the law, dealing with its origin and social function. Detailed research and analytical studies have supplied information about which social groups have in the past influenced the enactment of legal norms, what their motives were, and what benefits they derived from these laws. As a result of this research the law lost its sacred character. It ceased to be thought of as something extraordinary and came to be regarded realistically as an instrument for the realization of the interests of those groups which had influenced the enactment of the law. This kind of research, however, proved to be insufficient and somewhat one-sided. Consequently, new problems are being considered, and, of these, three are receiving special attention: (1) the evaluation of positive law, (2) the relationship between legal consciousness and socialist consciousness (which might also be called Marxist consciousness), and (3) comprehensive legal research. All of these problems have practical implications for us which, I trust, justify a brief discussion of them here. Inasmuch as these problems are still being investigated and discussed, I will confine myself to mere presentation of them and mention of the efforts that have been made toward their solution.

scholarly journals Law, Nation and Race: Exploring Law’s Cultural Power in Delimiting Belonging in English Courtrooms

2018 ◽  
Vol 28 (3) ◽  
pp. 281-302 ◽  
Author(s):  
Ana Aliverti
Keyword(s):  
Legal Culture ◽  
Social World ◽  
National Identities ◽  
Symbolic Power ◽  
Legal Consciousness ◽  
The Social ◽  
Cultural Power ◽  
The Law ◽  
Shed Light

This article explores the place of law and legality in the formation of British national identity and its reproduction (and contestation) inside the courtroom. It draws on sociolegal scholarship on legal culture, legal consciousness and ‘law and colonialism’ to shed light on the cultural power of the law to forge national subjectivities. The law does more than adjudicating justice and imposing sanctions. Its symbolic power lies in its capacity to construct legal subjectivities, of both individuals and nations. Through the law and its categories, people make sense of the social world and their position in it. The law can articulate national identities by expressing who we are and who we would like to be as a nation. By exploring the place of the law in discourses of British nationhood, this article contributes to our understanding of the ideological role of the law in reifying racial and global hierarchies. It also sheds light on how the boundaries of belonging can be unsettled through law’s power.

scholarly journals Dismissal of KPK Employees from Legal Positivism and Alternative Solutions

2021 ◽  
pp. 175
Author(s):  
Dominikus Dalu Sogen ◽  
Dewa Ayu Putri Asvini ◽  
Detty Kristiana Widayat
Keyword(s):  
Human Rights ◽  
Legal Theory ◽  
Legal Positivism ◽  
Constitutional Court ◽  
Human Right ◽  
The Public ◽  
Positive Law ◽  
The People ◽  
National Human ◽  
The Law

Studying the philosophy of law means studying various schools of law. Amongst the variety of legal theories, there are adherents of legal positivism or the positive legal theory postulated by John Austin (a philosopher whose thoughts on law are outlined in a work entitled The Province of Jurisprudence Determined 1832). Are Austin's thoughts still relevant for the practice of law inthe modern era, considering that law is made for the public interest? Is it appropriate for the law to be made by authorities (superior) to bind subordinates (inferior), whereas the people are only in a position to obey the law? In a functioning democracy public participation is important in decision-making by the elected legislators. Presumably, law is not made arbitrarily or unilaterally, but it is supposed to take into account the interest of the public or the interest of the groups it is designed to address. A prominent example currently in the public spotlight isthe dismissal of 57 Corruption Eradication Commission (KPK) employees due to their stated ineligibility following their failure to pass the National Insight Test Assessment. For this matter, a judicial review (JR) has been requested from the Constitutional Court and the Supreme Court who in the meantime have published their decisions. In addition, there have been recommendations from the National Human Rights Commission (Komnas HAM) and the Indonesian Ombudsman regarding the occurrence of human rights violations and maladministration in the transfer of KPK employees to ASN. Where JR's decision by the two judicial institutions is different from what is recommended by Human Right Commission and the Indonesian Ombudsman. Here it can be seen that there are differences in the application of the law with the positive law that applies and is detrimental to the rights of KPK employees.

scholarly journals PENYANGKALAN ADANYA TUHAN DALAM PANDANGAN ATEIS DAN SAINS MODERN

2017 ◽  
Vol 18 (1) ◽  
pp. 97-104
Author(s):  
Herwansyah Herwansyah
Keyword(s):  
Sigmund Freud ◽  
Karl Marx ◽  
Social Condition ◽  
Human Beings ◽  
Existence Of God ◽  
Ludwig Feuerbach ◽  
Jean Paul ◽  
The People ◽  
The Social ◽  
19Th And 20Th Century

The philosophy of the 19th and 20th centuries gave birth to the idea of atheism. Modern atheist figures include Ludwig Feuerbach, Karl Marx, Friedrich Nietzsche, Sigmund Freud and Jean-Paul Sartre. The denial of God presented by each of the 19th and 20th century figures has his own arguments and context. According to Feurbach God is the creation of human delusion. Karl Marx, religion is the opium of the people. Nietzsche, God is dead. Sigmund Freud, religion according to his psychological nature is an illusion. Sartre, the existence of God is nothingness. The denial of God by modern scientists does not mean not to believe in the existence of God at all, but they just have put aside the existence of God. The scientists deny the existence of God with mean to awaken, awaken the religious human beings of the social condition

scholarly journals PANDANGAN ISLAM TERHADAP PEMANFAATAN MEDIA SOSIAL

2016 ◽  
Vol 2 (2) ◽  
Author(s):  
Nur Aksin
Keyword(s):  
Social Media ◽  
Media Use ◽  
Social Media Use ◽  
Previous Period ◽  
The People ◽  
The Social ◽  
The Law

There are many examples based on the modernity of technology however, which affects the life (and especially thoughts and views) community and Muslims in this age is social media. If at some previous period, social media use newspapers, radio, television, wire, and other simple equipment, so today has been converted into a more easily with the technology. The most feared consequence is that social media would be more likely as a tool to launch a variety of ideas that will be largely irrelevant, and destructive to the lives according to the law, religious teachings and norms that berlaku.Oleh therefore, we should know more restrictions -batasan that 'should' in the air-the social media, the community and our people will not fall more deeply to the things that are provocative, ambiguous, confusing, and all the things that lead to moral decay and the mindset of the people.

scholarly journals THE ARRANGEMENT OF MODERN RETAIL INDUSTRY IN THE PERSPECTIVE OF POSITIVE LAW IN INDONESIA

2020 ◽  
Vol 9 (2) ◽  
pp. 162-171
Author(s):  
Sandra Megayanti ◽  
Candra Irawan ◽  
Emelia Kontesa
Keyword(s):  
Government Regulation ◽  
Retail Industry ◽  
Traditional Markets ◽  
Trade Law ◽  
Positive Law ◽  
The People ◽  
Unfair Competition Law ◽  
The Law ◽  
The One ◽  
Medium Businesses

Indonesia is a state law that all aspects of life in the areas of society, nationality and state affairs including government affairs should be based on the law in accordance with the national legal system, not least in terms of the economy. Economy is the backbone of public welfare, while the law plays an important role that determines how the prosperity achieved and felt by the people. One of the industries that participate in contributing to the growth and development of the Indonesian economy is the modern retail industry. The existence of the modern retail industry as having two sides of a coin, which on the one hand its existence becomes an important part in the economy, one of them in terms of employment. However, on the other hand, the existence of the modern retail industry raises problems, one of which is the rise of this industry makes the small and medium businesses cannot compete. Nevertheless, the existence of modern retail is currently being faced with adverse situations, where there are a lot of modern retailers who had to close their shops in a number of places, in addition, the proliferation of online businesses also adds problems in the modern retail industry. This study aimed to analyze the arrangement of modern retail industry in the perspective of Indonesian positive law. In this case, researcher used a normative legal research methods with qualitative juridical analysis. In terms of setting, the existence of the modern retail industry has not been able to provide its effectiveness in achieving fairness, certainty and expediency. Currently, the setting of modern retail industry could be seen in some rules, such as Law No. 7 of 2014 About the Trade, Law No. 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Competition, Law No. 25 of 2007 on Investment, President Regulation No. 112 of 2007 on Planning and Development of Traditional Markets, Shopping Centers and Modern Stores, and Government Regulation No. 44 of 1997 concerning the Partnership. However, the implementation of these regulations have not been going well because there is no consistency in the process of administration of justice, both by governments and businessesactors.

Sign in / Sign up

Export Citation Format

Share Document