The function of moral norms in the legal system: The Krausists’s restoration of the fundamental concepts of law

Human Affairs ◽  
2011 ◽  
Vol 21 (1) ◽  
Author(s):  
Delia Manzanero ◽  
José Vázquez Romero
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Natural Law ◽  
Balance Of Power ◽  
Civil Servants ◽  
Moral Action ◽  
Contemporary Society ◽  
Moral Norms ◽  
Philosophy Of Law ◽  
Theory Of Law

AbstractThere are multiple and diverse voices of jurists who have expressed their fear of the unrestricted power of law enforcement and have announced the crisis of the formalist sense of Law. The widespread reaction against the abstract and formalist character of the positivist theory of law manifested itself as the Krausist philosophy of law and was backed by the philosophy of Krause, Schelling, Hegel and the most recent Natural Law theories that seek to establish substantial criteria for moral action. This distrust was caused by the heteronomy of modest and obedient civil servants of the judicial order that rely on political balance of power in which nothing depends on the human bottom of institutions. Let us consider briefly the impressive analyses performed by different thinkers on this issue, which they considered characteristic of their era, but that continues to constitute a difficulty that challenges contemporary society.

scholarly journals Properties of constitutional principles

2021 ◽  
Vol 5 (3) ◽  
pp. 126-136
Author(s):  
S. A. Mosin
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Legal Framework ◽  
The State ◽  
Basic Rule ◽  
Constitutional Principle ◽  
The Law ◽  
Theory Of Law ◽  
The Stability ◽  
The Trinity

The subject. The article is devoted to the study of the trinity of properties of constitutional principles.The purpose of the article is to confirm the hypothesis that constitutional principles, often perceived by researchers and law enforcement officials as abstract norms with declarative content, are in fact full-fledged legal institutions that are endowed with all the necessary properties to achieve constitutional goals. In this regard, the article analyzes the property of axiomaticity, the property of presumptivity and the property of fictitiousness of constitutional principles.The methodology. The systemic-structural, comparative, formal-legal and formal-logical methods made it possible to identify and characterize the properties of constitutional principles, such as axiomaticity, presumptivity and fictitiousness. The use of these methods in their combination predetermined the appeal not only to topical problems of constitutional law, but also to issues of the theory of law, as well as other branches of law, which made it possible to most objectively and comprehensively approach the study of the properties of constitutional principles.The main results of the research. The trinity of the properties of the constitutional principle lies in the fact that the constitutional principle formulates the basic rule and determines the direction of development of the legal system and thereby has the property of axiomaticity. At the same time, the constitutional principle has the property of presumptivity due to the duty of the law enforcement officer to proceed from the assumption of compliance with the provisions of such a principle by all subjects of legal relations. Thereby constitutional principle ensures the necessary stability of the legal system of the state. At the same time, in order to achieve full-fledged stability of the legal system, along with the assumption that the subjects of legal relations comply with the provisions of the constitutional principles, it should be possible to monitor such compliance. In the absence of prior control over compliance with the provisions of the law, the solution is the application of legal presumptions. In this regard, within the framework of the presumptive property of constitutional principles, constitutional presumptions are inextricably linked with the corresponding constitutional principles. In turn, having the property of fictitiousness, the constitutional principle allows to interpret the provisions that make up such a constitutional principle and, as a result, create the necessary regulatory legal framework.Conclusions. Constitutional principles are the driving force of the legal system. They fill all legal relations without exception with legal meaning and content and have a special meaning due to their irreplaceability and the obligation to strictly observe them. In turn, the trinity of properties of the constitutional principles reflects their legal essence as fundamental normative provisions that determine the generally binding basic rules and directions of the development of the legal system, ensure the stability of the legal system of the state, and also have the possibility of timely development and adaptation to the changing legal reality.

scholarly journals Settlement of Indonesian disorientation of democracy: perspective of legal culture

2018 ◽  
Vol 52 ◽  
pp. 00031
Author(s):  
Muhammad Yusrizal Adi Syaputra ◽  
Mirza Nasution
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
Legal Culture ◽  
State Administration ◽  
Freedom Of Press ◽  
History Of ◽  
Asean Countries ◽  
Theory Of Law ◽  
Culture Education

The orientation of Indonesian democracy is the establishment of an Indonesian rule of law based on Pancasila. The disorientation of Indonesian Democracy caused the unstable political situation, uncontrolled freedom of press, uneven law enforcement. This situation has resulted in the low quality of democratic implementation in Indonesia compared to ASEAN countries. This research uses a normative juridical method with qualitative. The theory of “law is the spirit of the volk” which pioneered by von Savigny and the theory of legal system by Friedman will be the theoretical analysis in this research. Based on theory law is the spirit of the volk by Savigny, the current Indonesian state administration is not in accordance with the culture and history of the Indonesian nation. The cause of disorientation of democracy in Indonesia, first, the existence of cultural degradation of society. Second, the destruction of the legal and political system. Third, uncontrolled freedom of press. Pancasila as the volkgeist (spirit of the nation) of Indonesia should be the basic of state administration. Based on the legal system theory, the revitalization of Pancasila’s values and the legal culture education is the solution to resolve disorientation of Indonesian democracy.

scholarly journals Formation of the legal system theory in Legal science (Part 2)

2020 ◽  
pp. 26-33
Author(s):  
Larysa Udovyka
Keyword(s):  
General Theory ◽  
International Law ◽  
Legal System ◽  
Comparative Law ◽  
Universal Theory ◽  
Legal Systems ◽  
Philosophy Of Law ◽  
Territorial Integrity ◽  
Legal Science ◽  
Theory Of Law

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.

IN DEFENSE OF HART

Legal Theory ◽  
2013 ◽  
Vol 19 (4) ◽  
pp. 370-402 ◽  
Author(s):  
Matthew H. Kramer
Keyword(s):  
Legal System ◽  
Planning Theory ◽  
Main Section ◽  
Philosophy Of Law ◽  
New Approach ◽  
Theory Of Law

In Legality Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a rule of recognition through which officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the rule of recognition are confused and that his model of law—though commendably more sophisticated than any model propounded by earlier legal positivists—is consequently untenable. Shapiro contends that a new approach is vital for progress in the philosophy of law and, with his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach. Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant planning theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the planning theory.

scholarly journals Philosophy of law in the process of reforming the legal system of Ukraine: theory and practice

2020 ◽  
pp. 35-40
Author(s):  
Svitlana Fursa ◽  
Yevhen Fursa
Keyword(s):  
Law Enforcement ◽  
Legal System ◽  
High Standard ◽  
The State ◽  
Theory And Practice ◽  
Standard Of Living ◽  
Philosophy Of Law ◽  
Social Law ◽  
The Individual ◽  
Strategic Goal

The research aims at developing the concept of a new perception and content of philosophy of law which should be based on thephilosophies of the relevant fields of law and integrate the main directions of further evolution of the legal system into a single harmonizedmodel in order to protect rights and interests of the individual and the citizen. Theoretical basis comprises modern concepts of scholars inthe field of philosophy of law, whose typical and original ideas have been selected and analyzed. Also, the paper constructively and criticallyanalyzes their correspondence to contemporary problems of the legal system of Ukraine. The authors identify a new function of philosophyof law – defining the purpose and systematic direction of reforming the legal system of Ukraine, as well as the ways to achieve the goalthrough improving the activities of law enforcement and human rights bodies. Current tendencies in the development of the legal system ofUkraine are based on the solution of various tactical tasks, in particular, in the sphere of economy, health care, social security, the judicialsystem; however, the strategic goal of its reforming – the self-sufficient state of Ukraine – has not been set. This very goal should set prioritiesin the development of the legal system of Ukraine as a sovereign, independent, democratic, social, law-based state. At the same time, thepreamble to the Constitution of Ukraine stipulates the irreversibility of the European and Euro-Atlantic course of Ukraine, which will haveto delegate some of its powers to international organizations. The provisions regarding sovereignty and independence of the state will losepriority, which will lead to amendments to the Constitution of Ukraine. At the same time, the theory of a self-sufficient state has not beendeveloped in Ukraine. However, due to this theory the implementation of the defining principles of the state system, proclaimed in the Cons -titution of Ukraine and capable of ensuring a high standard of living of their citizens and their real independence should be guaranteed.

scholarly journals The dialectics of cyclicity in the development of law.

2021 ◽  
Vol 3 (3) ◽  
pp. 16-22
Author(s):  
Yuriy Vedyernikov ◽  
Vasyl Tkachenko ◽  
Volodymyr Shestakov
Keyword(s):  
Legal System ◽  
Natural Law ◽  
Philosophy Of Law ◽  
Positive Law ◽  
Driving Mechanisms ◽  
Modern Knowledge ◽  
New Form ◽  
Methodological Principles ◽  
Oscillating Processes ◽  
Oscillatory Processes

The dialectic of cyclicity in the system of dual natural and positive law, as the transition from one opposite to another, involution to evolution, quantitative transformations into qualitative and actually regular cyclicity of crises and stability in the legal system is studied. The dialectic of cyclicity in law occurs as constant oscillating processes of transition from one opposite to another, natural law into positive, involution into evolution, quantity into quality, crisis into stability, and development in a circle gradually turns into a spiral. Defining and substantiating the phases and stages of the cycle allows us to demonstrate the development of a particular cycle and the driving mechanisms of this transformation – the laws of dialectics, in particular, the unity and struggle of opposites in law, the transition from quantity to quality, denial of the old and so on. Oscillatory processes are manifested in opposites of phases and stages of cycles, and small cycles of development of law are embedded in large ones, where each cycle is part of a larger cycle, and that in turn is even larger, and so on. The end of one cycle leads to the transformation of the legal system and its manifestation in a new form and content at a new level of the spiral of development. Ways to overcome the crisis in the legal system should be sought, first of all, in the updated methodological principles of cyclicality in jurisprudence based on the ideas of natural law, based on the principles and laws of dialectics, laws of philosophy of law, and in combination with other branches of modern knowledge.

scholarly journals THE POSITION OF STATE RESPONSIBILITY FOR ENVIRONMENTAL POLLUTION BY CORPORATE : The Legal Studies of Implementation Paradigm Polluter Pay Principle in Environmental Law Enforcement in Indonesia

2016 ◽  
Vol 1 (2) ◽  
pp. 119
Author(s):  
Maret Priyanta
Keyword(s):  
Law Enforcement ◽  
Natural Resources ◽  
Environmental Pollution ◽  
Legal System ◽  
Environmental Law ◽  
Human Life ◽  
Legal Aspect ◽  
National Development ◽  
State Responsibility ◽  
Theory Of Law

The development activities is one of the government's efforts in order to realize a fairness and prosperous for the society. The natural resources management through the business activities carried out by the corporation, became one of the important factors in the success of national development. One of the impacts of development activities on the environment is the environmental pollution because of the utilization of natural resources. The pollution has caused a decrease in the quality of human life and other living creatures. Differences paradigm or way people view the polluter pays principle and the position of the responsibility of States to discredit the corporation still there is a difference of view and understanding. It is see from the practice of application of the Social and Environmental Responsibility (TJSL), which seems to have been removing corporate responsibility and involvement allocationof State budget revenue and expenditure of the State to penangulangan pollution, which performed by the corporation. This has led to uncertainty in the law enforcement environment in Indonesia. This study aimed to describe the problem from the legal aspect and theory in relation to the position of state responsibility and corporate environmental pollution in the environmental legal system. This study uses normative juridical approach, through the method of approach to legislation, the conceptual approach, and an analytical approach. The scope of this normative juridical research includes the study of the principles and theory of law. Paradigm reform of the principles of pollution should be change or reform based on theory of law, whereby the position and extent of responsibility of states and corporations definitely be regulated in the Indonesia environmental legal system.

Penerapan Hukum Wakaf Uang di Indonesia Perspektif Legal System Theory

2018 ◽  
Vol 11 (1) ◽  
pp. 79-92 ◽  
Author(s):  
Masdar Masdar
Keyword(s):  
System Theory ◽  
Law Enforcement ◽  
Legal System ◽  
Legal Culture ◽  
Point Of View ◽  
Law Enforcement Agencies ◽  
Muslim Society ◽  
The Law ◽  
The Government

Cash waqf in Indonesia has been long enough implemented based on some rules enacted by government and other rules defined by The Waqf Board of Indonesia (BWI). However, the implementation of cash waqf has not reached the level of success. Therefore, this article studies the application of cash waqf law in Indonesia according to Friedman’s legal system theory. The legal system theory of Friedman firstly looks at the substance of the law, which is the rules or regulations; and secondly it examines the structure of the law, encompassing the law enforcement agencies, such as judge, prosecutor, police and legal counselors. And lastly the theory examines the element of legal culture, which is a response from Muslim society. The first two examinations indicate that there is nothing to be a problem. But from the last examination there is a problem regarding the trust from Muslim society. From the legal culture point of view, the implementation of cash waqf by the government, which is performed by BWI, needs attracting society’s credentials in order to improve and maximize the performance of cash waqf in Indonesia.

SEARCH FOR AND SEIZURE OF EVIDENCE IN CYBER ENVIRONMENTS: A LAW-ENFORCEMENT DILEMMA IN SOUTH AFRICAN CRIMINAL PROCEDURE

2014 ◽  
Vol 1 (1) ◽  
pp. 48-67
Author(s):  
Vinesh M Basdeo ◽  
Moses Montesh ◽  
Bernard Khotso Lekubu
Keyword(s):  
Law Enforcement ◽  
South African ◽  
Legal System ◽  
Criminal Procedure ◽  
Integrated Approach ◽  
Physical World ◽  
Legal Framework ◽  
Time Zone ◽  
Legal Sanctions ◽  
Domestic Affairs

Investigating, deterring and imposing legal sanctions on cyber-criminals warrants an international legal framework for the investigation and prosecution of cybercrime. The real-world limits of local, state and national sovereignty and jurisdiction cannot be ignored by law-enforcement officials. It can be a strenuous task to obtain information from foreign countries, especially on an expedited basis – more specifically when the other country is in a different time zone, has a different legal system, does not have trained experts and uses different languages. In South Africa existing laws appear to be inadequate for policing the cyber realm. The effects and impact of information technology on the legal system have not yet received the attention they warrant. The challenges presented by the electronic realm cannot be solved merely by imposing existing criminal and criminal procedural laws which govern the physical world on cyberspace. The electronic realm does not necessarily demand new laws, but it does require that criminal actions be conceptualised differently and not from a purely traditional perspective. Sovereignty and the principle of non-interference in the domestic affairs of another state are fundamental principles grounding the relations between states; they constitute an important mechanism in the armoury of criminals. The harmonisation and enactment of adequate and appropriate transborder coercive procedural measures consequently play a pivotal role in facilitating effective international cooperation. This article examines the efficacy of South African laws in dealing with the challenges presented by police powers to search for and seize evidence in cyber environments. It analyses the rudimentary powers that exist in South African criminal procedure regarding the search for and seizure of evidence in cyber environments, and compares them against the backdrop of the more systemic and integrated approach proposed by the Cybercrime Convention.

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