scholarly journals Discursul juridic. 0 introducere. (I)

2021 ◽  
Vol 65 (3) ◽  
pp. 91-112
Author(s):  
Paul Vasilescu

Researching the law, as a formal source of legal norms, seams incomplete without portraying the role and function of the discourse about the law itself. Two kinds of texts: the one of the law and another, about-the-law, compose a peculiar discourse (textual or not). We analyse this discourse to know if the law exists by itself, or if it exists only as some kind of law, adjectivated and described.

2009 ◽  
pp. 163-172
Author(s):  
Angelo Abignente

- The positive law tradition has hitherto had nothing to say about the legal profession's role and function, focusing more interest on questions of justice, of the legitimisation of power and of the genesis and organisation of normative material. This trend is now subject to a reversal promoted by new, neo-constitutionalist, narrativist, analytical and hermeneutic experiences, which no longer focuses attention on the moment when law is produced, but on the one when it is applied, reappraising and revitalising the function of the judge, of the attorneys and of other legal professionals. The attorney becomes an active protagonist, an intermediary not only between conflicting interests in a controversy, but also between opposing public interests, while the reappraisal of his role stimulates thinking about the ethical dimension of how the legal profession is practised. Referring to the theories of Habermas and of Alexy, the author treats the reasonable status of argumentation as the supreme ethical instance necessary for a decision that interferes in the sphere of another person's action. At the same time, however, the control of the reasonable status of the respective arguments on both sides is the ethical instance required of the attorneys taking part in the legal proceedings. It takes the form of compliance with the rules characteristic of the practical discourse, primarily the rule of free discursive participation that enables the onus of the argumentation to be explained. Ernesto de


2019 ◽  
pp. 307-316
Author(s):  
Kirsty Horsey ◽  
Erika Rackley

This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.


2015 ◽  
Vol 75 (5) ◽  
pp. 325-341
Author(s):  
Michael Welker

AbstractThis article refers to the recent German discussion on the role and function of legal dogmatics. The insistence among legal scholars on relating the evolution of the law to academic work, to the praxis of the courts and on locating it in truth-seeking communities, but also the insight into the multifunctionality of dogmatics open up ways for a comparison of legal and theological dogmatics. The article identifies nine levels in legal and theological dogmatic thought and orientation which lead to fruitful observations of commonalities and differences of legal and theological normativity.


2017 ◽  
Vol 43 ◽  
pp. 401-420
Author(s):  
Jarosław Majewski

Is the idea of so-called “secondary legality” defensible?The aim of the study is critical analysis of the idea of so-called “secondary legality” of an act used by some jurists to explain types of behaviour falling into the category of circumstances excluding lawlessness of an act justification, namely to define the relation between such types of behaviour and the legal system as a whole, and the various sanctioned norms that are part of the system. First, the author examines the relation between the assumption that a type of behaviour which falls within the category of circumstances excluding lawlessness of an act constitutes a legal transgression of the sanctioned norm, and the basic assumptions made in the Polish legal culture concerning the process of creation and application of the law as well as its systematic analysis. He demonstrates that consistent use of the secondary legality category would require a considerable remodelling of these assumptions, above all, rejection of the assumption that legal norms are introduced to be met as well as all consequences stemming from this assumption as well as abandonment of the approach to the law as a set of legal norms that is internally cohesive. Next, the author analyses the internal aspects of the idea of secondary legality of an act. He demonstrates that it encompasses contradictory statements: on the one hand that justifi able behaviour constitutes socially harmful, negative and thus a typical attack on legal interest, and on the other hand that the social benefits ultimately outweigh losses in the case of justifiable behaviour. All the above justifies the author’s final conclusion that the category of secondary legality of an act is not useful.


1969 ◽  
pp. 341
Author(s):  
Brian Kaliel

Civil rights in juvenile courts is an area of the law that has attracted wide discussion and comment in the United States. Canada's laws, however, while following the same general pattern as those in the United States have not been the subject of close scrutiny. The purpose of the article is to scrutinize Canada's laws and place them in the context of modem views as the role and function of juvenile courts.


2020 ◽  
Vol 11 (3) ◽  
pp. 343-368
Author(s):  
Liane M. Feldman

Abstract Most studies of the law of the priesthood in Aramaic Levi have focused on comparing its individual laws to those in the Torah/Pentateuch. This article argues that these types of comparisons are anachronistic and obscure the distinctive portrayal of sacrifice in Aramaic Levi. The law of the priesthood does not merely respond to, expand, or revise earlier ideas about sacrifice found in “biblical” texts. Rather, the practice and function of sacrifice in Aramaic Levi is constructed around the deity’s senses of sight and smell. Inasmuch as the law of the priesthood presents a fundamentally different idea of sacrifice than the one presented in Leviticus, it speaks to the continuum of distinct Jewish ideologies of sacrifice in the mid-Second Temple period.


Author(s):  
Kirsty Horsey ◽  
Erika Rackley

This chapter discusses liability for breach of statutory duty. There may be cases where a statute renders a certain activity a crime, and the law imposes an additional civil liability towards a person harmed by the act. While some statutes state this directly, most statutes make no mention of potential civil liability, but nevertheless liability may be imposed if the court believes that Parliament impliedly intended there to be a remedy. Not only are there difficulties about when a civil duty will be spelt out of a criminal or regulatory statute, but there are also problems about the role and function of the tort of statutory duty.


1997 ◽  
Vol 4 (1) ◽  
pp. 1-36 ◽  
Author(s):  
Muhammad Qasim Zaman

AbstractThe early ʿAbbāsid period is usually thought of as a time when a definitive and enduring separation between religion and politics took place. On this view, expressed most notably by Lapidus and Crone and Hinds, the failure of the Miḥna instituted by the caliph al-Maʾmūn, a major showdown with prominent ʿulamāʾ, is taken as the critical moment which marked the end of any involvement of the caliphs in matters of law. Arguing against any such separation between the religious or legal and the political realms, this essay analyses various indications in juristic and historical sources from the early ʿAbbāsid period to show that the caliph continued to be recognized as a participant in the function of commenting on or resolving obscure matters of a legal import. There is, moreover, considerable evidence to show caliphal participation in religious life in general, before as well as after the Miḥna, and no evidence to indicate a separation between religion and politics.


2021 ◽  
Vol 4 (1) ◽  
pp. 191-211
Author(s):  
Rosdalina Bukido ◽  
Hasyim Sofyan Lahilote ◽  
Irwansyah Irwansyah

The Omnibus Law for Job Creation establishes a special agency called the land bank agency that manages state land, including planning, acquisition, procurement, management, utilization, and distribution of land. This article revisits on how urgent this land bank is and how its supervisory powers and mechanisms are implemented. This article demonstrates that the formation of the land bank is actually related to problems in land acquisition, especially those intended for infrastructure development, which has triggered land liberalization and caused the increase of land price. Therefore, the land bank is urgent to ensure the availability of land for various development purposes in the future, budget efficiency, as well as to avoid conflicts in the land acquisition process and reduce the side effects of land liberalization. In order to encourage the land bank play its role and function as intended in its formation, good and efficient supervision is also needed. So far, it has been stated in the Omnibus Law for Job Creation that internal supervision is carried out by the supervisory board. Taking into account the relationship of the land bank and the supervisory board with other agencies or institutions that carry out the functions of land and bank as well as their supervision, like the one by the National Land Agency and the Financial Service Authority, it is necessary to have clarity on each role and function to avoid overlap. Abstrak UU Cipta Kerja membentuk badan khusus yang mengelola tanah, yaitu badan bank tanah, yang berfungsi melaksanakan perencanaan, perolehan, pengadaan, pengelolaan, pemanfaatan, dan pendistribusian tanah. Dalam artikel ini dibahas apa sebetulnya urgensi bank tanah ini dan bagaimana pula kewenangan dan mekanisme pengawasannya. Artikel ini memperlihatkan pembentukan bank tanah sebetulnya terkait dengan permasalahan dalam pengadaan tanah terutama yang diperuntukkan bagi pembangunan infrastruktur, sehingga memicu terjadinya liberalisasi tanah dan mengakibatkan harga tanah melambung tinggi. Karena itu, bank tanah urgen dalam rangka menjamin ketersediaan tanah untuk berbagai keperluan pembangunan di masa yang akan datang, efisiensi anggaran, serta mengurangi konflik dalam proses pembebasan tanah dan dampak buruk liberalisasi tanah. Dalam rangka mendorong agar bank tanah berperan dan berfungsi sebagaimana dikehendaki dalam pembentukannya, maka diperlukan pengawasan yang baik dan efisien pula. Sejauh ini dalam UU Cipta disebutkan pengawasan dilakukan secara internal oleh dewan pengawas. Dengan mempertimbangkan adanya keterkaitan bank tanah dan dewan pengawas ini dengan badan atau lembaga lainnya yang menjalankan fungsi pertanahan dan bank serta pengawasannya juga, misal Badan Pertanahan Nasional dan Otoritas Jasa Keuangan, maka adanya kejelasan terhadap masing-masing peran dan fungsi sangatlah diperlukan, agar tidak malah terjadi tumpang tindih.


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