For a socio-legal theory of risk

2009 ◽  
pp. 69-82
Author(s):  
Alberto Febbrajo
Keyword(s):  
Legal System ◽  
Legal Theory ◽  
General System ◽  
Time Frame ◽  
Point Of View ◽  
Social Strategy ◽  
Relevance Criteria ◽  
The Concept Of Law ◽  
Legal Strategies ◽  
The Individual

- This article aims to offer an overview of some contributions to a socio-legal theory of risk. Starting from the presupposition that risk is a concept that plays a central role in sociological as well as in legal theory, it underlines the thesis that, from the point of view of the general system theory, the application of three different strategies of risk-management can be recognised in the legal system: a substantial strategy, which comprises shielding a core of legal contents from the risk of sudden and drastic changes; a social strategy, whereby risks are externalised by creating virtual figures (legal persons) which relieve "natural" persons from those risks that are particularly severe and hard to sustain in the sphere of economic activity; and a temporal strategy, in which risks are diluted by implementing procedures, i.e. sequences of operations, featuring relevance criteria of their own and by a time-frame that, to a certain extent, can be pre-determined. Moreover, in every advanced legal system, there is a need for tools for reducing or avoiding the risks produced by the current legal strategies for risk absorption. One of the main learning processes concerning the risks produced by law is democracy, which is also in turn exposed to risks. Because the present situation features profound changes in the structure of world society as a whole, which dramatically transform the types of risks confronting the legal system, the concept of law oriented to an imperativistic approach is no longer adequate. Instead, it needs to be based on a communicative approach, according to which the treatment of risks trespasses on the borders of the individual state and takes on a cultural and communicative, rather than a practical, dimension, characterised by symbolic legitimisation, virtual effectiveness and increased openness

scholarly journals The Question To Be Faced Is One of Fact: H.L.A. Hart’s Legal Theory Through His View of International Law

2021 ◽  
pp. 1-13
Author(s):  
Giovanni Bisogni
Keyword(s):  
International Law ◽  
Legal System ◽  
Legal Theory ◽  
Borderline Case ◽  
Borderline Cases ◽  
Central Case ◽  
The Concept Of Law ◽  
Domestic Law ◽  
Concept Of Law

H.L.A. Hart says that The Concept of Law is focused on municipal or domestic law because that is the “central case”1 for the usage of the word ‘law.’ At the beginning of the book he states that “at various points in this book the reader will find discussions of the borderline cases where legal theorists have felt doubts about the application of the expression ‘law’ or ‘legal system,’ but the suggested resolution of these doubts, which he will also find here, is only a secondary concern of the book.”2 Yet among those borderline cases there is one that is rather intriguing, since Hart closely discusses a particular instance of them: it is international law, to which he devotes an entire chapter—the final one—of The Concept of Law. My goal in this article is therefore to make clear why the ‘resolution’ of the borderline case of international law is not entirely ‘secondary’ to Hart’s overall project in The Concept of Law and, in so doing, to show that Chapter X is not as unhappy as many think it is.

scholarly journals Contra o Conceito do Direito: Ontologia e Epistemologia no Problema da Definição do Direito

2018 ◽  
Author(s):  
Ítalo Oliveira
Keyword(s):  
Legal Theory ◽  
Scientific Activity ◽  
Point Of View ◽  
Epistemological Problem ◽  
Specific Object ◽  
Advance Research ◽  
The Concept Of Law ◽  
Definition Of ◽  
Ontological Problem ◽  
Concept Of Law

The problem of definition of the concept of law or at least the description of features of legal phenomenon presents variation about the implications of its solution and about the worries around it. The forms of this problem I am interested in are related to ontology and epistemology in legal philosophy: ‘What is the law?’ as (1) a question about the definition of the essence of law and (2) about the definition of a specific object of investigation for sciences about the supposed legal phenomenon – philosophy of law, legal theory, and science of law, for instance. Challenging its premises and trying to avoid both the ontological problem and epistemological problem, I propose a change of perspective from pragmatic concerns what I call the “manager's point of view”: a vision of who should manage the finite economic resources to finance scientific activity in the area of law. I argue that, starting from there, the problem of defining the concept of law as an ontological problem and as a epistemological problem is an unnecessary problem whose solution is useless to advance research in the field of law. I propose a reorientation of the controversy that has implications on how to see the researches and the education in this field.

Peter Winch and H.L.A. Hart: Two Concepts of the Internal Point of View

2007 ◽  
Vol 20 (2) ◽  
pp. 453-473 ◽  
Author(s):  
Veronica Rodriguez-Blanco
Keyword(s):  
Legal Theory ◽  
Point Of View ◽  
The Other ◽  
Reasons For Action ◽  
Internal Point ◽  
Practical Point ◽  
Other Hand ◽  
External Point ◽  
Third Person ◽  
The Concept Of Law

In his book The Concept of Law, Hart advances an arresting idea: the internal point of view. The idea immediately captured the imagination of legal theorists and was envisaged as a step forward in understanding both the nature of law and its practices. There is, however, lack of clarity and ambiguity on understanding Hart’s important notion and its role in different key jurisprudential problems such as the normativity of law and the methodology of legal theory. This article reconstructs the intellectual roots of the internal point of view and argues that although the seeds of Hart’s idea can be found in Winch’s seminal book The Idea of a Social Science, there are striking differences between Hart’s and Winch’s notions of the internal point of view. Winch endeavors to explain the participant’s viewpoint in terms of what the participants are doing. On the other hand, Hart aims to provide an explanation of how the law enables judges and law-abiding citizens to determine what they ought to do. This difference has been often overlooked by legal scholars; however, it provides the key to understanding Hart’s connection between the internal viewpoint and the normativity of law, i.e., the idea that legal rules provide reasons for action and, in some circumstances, create and impose duties and obligations. The distinction also illuminates the demarcation in the methodology of legal theory between an explanation from a detached perspective, namely the second or third-person standpoint of the practical point of view and, on the other hand, either a theoretical or hermeneutical explanation of the participant’s point of view. I argue that the non-recognition of the practical/participant distinction has been pervasive in two ways. First, there has been an overemphasis on the distinction between the internal and the external point of view. Second, a more fundamental distinction between an ‘engaged’ and ‘detached’ viewpoint which is a predominant feature of the practical point of view has been under-researched.

scholarly journals H.L.A. Hart's secondary rules: what do ‘officials’ really think?

2017 ◽  
Vol 14 (01) ◽  
pp. 61-86
Author(s):  
David Howarth ◽  
Shona Wilson Stark
Keyword(s):  
Pilot Study ◽  
Legal System ◽  
Local Authority ◽  
Point Of View ◽  
Internal Point ◽  
Chief Executives ◽  
Legal Thinking ◽  
The Concept Of Law ◽  
Necessary And Sufficient ◽  
The Impact

AbstractThe impact of H.L.A. Hart'sThe Concept of Lawon modern legal thinking is undisputed. But does it reflect the reality of the way British institutions work? InConcept,Hart argued, amongst other things, that one of two ‘minimum conditions necessary and sufficient for the existence of a legal system’ was that ‘its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials’. In this paper, we begin the process of testing that statement empirically. Specifically, we ask whether non-judicial UK officials have a uniform view of what the rules of recognition, change and adjudication are, and whether they uniformly take an internal point of view towards them (i.e. whether they accept the rules and do not merely obey them). By way of a pilot study, thirty non-judicial UK officials were interviewed. Those officials comprised currently serving and retired senior civil servants, senior military officials, chief constables and local authority chief executives. The findings of the pilot study are presented in this paper. They allow us to deduce that Hart's statement might well be an inaccurate and incomplete description of the modern British constitution, and to comment on the implications of that conclusion.

scholarly journals Globalization and National and Cultural Identity

Adam alemi ◽  
2020 ◽  
Vol 4 (86) ◽  
pp. 145-153
Author(s):  
G.S. Simukanova
Keyword(s):  
Cultural Identity ◽  
National Culture ◽  
Mass Culture ◽  
General System ◽  
Point Of View ◽  
Mass Society ◽  
Mass Consciousness ◽  
The Common ◽  
The Republic ◽  
The Individual

The article deals with issues of national and cultural identity in the context of globalization in various aspects: in relation to oneself, in relation to others; national. The article deals with the problem of identity in the cultural and ethnic context, its connection with personal and psychological relations, the General system of values, material and living conditions of the individual, as well as General economic, social and cultural interests.In modern scientific literature, the terms «mass society», «mass culture» and «mass consciousness»are often used. The article considers the content of these concepts from the point of view of identity. It is argued that the introduction of Americanized ersatz-culture is aimed at blurring the common true culture, including ethnic national culture the author makes a conclusion about the spiritual principles that unite all people of the Republic of Kazakhstan, reveals the idea of civil society, the Kazakh national idea in relation to the idea of Eurasianism, and shows the Kazakh national idea based on tolerance in the development of Kazakhstan.

A Venture into Legal Theory

2021 ◽  
pp. 93-107
Author(s):  
Lorenzo Gasbarri
Keyword(s):  
International Law ◽  
International Organizations ◽  
Legal System ◽  
Legal Theory ◽  
Legal Pluralism ◽  
Point Of View ◽  
International Organization ◽  
Legal Systems ◽  
Novel Theory ◽  
Fragmentation Of International Law

This chapter presents a novel theory on the concept of an international organization. It discusses the meaning of legal systems in legal pluralism, against the background of the fragmentation of international law and interlegality. It relies on the analytical theory of Hart and the institutionalism of Santi Romano. Two notions are applied to international organizations: relative/absolute legality and original/derived legal systems. The absolute legality of the rules of international organizations is a combination of the derivative nature of the legal system that produces them and the point of view of the legal system in which the rules are implemented. The conclusion is that international organizations are dual entities: ‘international organization means an institution established by a treaty or other instrument governed by international law and capable of creating a legal system which derives from international law and that produces law which is at the same time internal and international’.

УКРАЇНОЗНАВЧИЙ ОСВІТНІЙ ЧИННИК В УМОВАХ СУЧАСНОЇ УКРАЇНСЬКОЇ МАСОВОЇ КУЛЬТУРИ

2019 ◽  
pp. 22-29
Author(s):  
Н. В. Фрадкіна
Keyword(s):  
Mass Culture ◽  
Personal Development ◽  
Negative Impact ◽  
Educational Process ◽  
Point Of View ◽  
Character Trait ◽  
Main Task ◽  
Leading Role ◽  
The Individual

The purpose and tasks of the work are to analyze the contemporary Ukrainian mass culture in terms of its value and humanistic components, as well as the importance of cultural studies and Ukrainian studies in educational disciplines for the formation of a holistic worldview of modern youth.Analysis of research and publications. Scientists repeatedly turned to the problems of the role of spirituality in the formation of society and its culture. This problem is highlighted in the publications by O. Losev, V. Lytvyn, D. Likhachev, S. Avierintsev, M. Zakovych, I. Stepanenko and E. Kostyshyn.Experts see the main negative impact of mass culture on the quality approach, which determines mass culture through the market, because mass culture, from our point of view, is everything that is sold and used in mass demand.One of the most interesting studies on this issue was the work by the representatives of Frankfurt School M. Horkheimer and T. Adorno «Dialectics of Enlightenment» (1947), devoted to a detailed analysis of mass culture. Propaganda at all socio-cultural levels in the form is similar in both totalitarian and democratic countries. It is connected, according to the authors, with the direction of European enlightenment. The tendency to unify people is a manifestation of the influence of mass culture, from cinema to pop. Mass culture is a phenomenon whose existence is associated with commerce (accumulation in any form – this is the main feature of education), in general, the fact that it exists in this form is related to the direction of the history of civilization.Modern mass culture, with its externally attractive and easily assimilated ideas and symbols, appealing to the trends of modern fashion, becomes a standard of prestigious consumption, does not require intense reflection, allows you to relax, distract, not teach, but entertains, preaches hedonism as the main spiritual value. And as a consequence, there are socio-cultural risks: an active rejection of other people, which leads to the formation of indifference; cruelty as a character trait; increase of violent and mercenary crime; increase in the number of alcohol and drug addicts; anti-patriotism; indifference to the values of the family and as a result of social orphanhood and prostitution.Conclusions, perspectives of research. Thus, we can conclude that modern Ukrainian education is predominantly formed by the values of mass culture. Namely, according to the «Dialectic» by Horkheimer and Adorno, «semi-enlightenment becomes an objective spirit» of our modern society.It is concluded that only high-quality education can create the opposite of the onset of mass culture and the destruction of spirituality in our society. It is proved that only by realizing the importance of cultivating disciplines in the educational process and the spiritual upbringing of the nation, through educational reforms, humanitarian knowledge will gradually return to student audiences.Formation of youth occurs under the influence of social environment, culture, education and self-education. The optimal combination of these factors determines both the process of socialization itself and how successful it will be. In this context, one can see the leading role of education and upbringing. It turns out that the main task of modern education is to spread its influence on the development of spiritual culture of the individual, which eventually becomes a solid foundation for the formation of the individual. Such a subject requires both philosophical and humanitarian approaches in further integrated interdisciplinary research, since the availability of such research will provide the theoretical foundation for truly modern educational and personal development.

Childhood adversity studies as an antidote to the predominance of neo-liberal thinking in the field of mental health

2020 ◽  
Vol 29 (4) ◽  
pp. 556-563
Author(s):  
Adam Burley
Keyword(s):  
Mental Health ◽  
Childhood Adversity ◽  
Sole Source ◽  
Point Of View ◽  
Early Adversity ◽  
Potential Impact ◽  
The Individual

This is a personal and reflective piece written from a clinician's point of view on the influence that the developing awareness around the consequences of childhood adversity has had upon the discussions, thinking and practice across the areas in which they are working. It seeks to argue that the increased understanding and recognition of the potential impact of early adversity can not only enhance and deepen the understanding of an individual's difficulties, but can serve to inform how services respond in a way that takes account of this. It suggests that the research and literature on childhood adversity can offer a route map away from a model of mental health that focuses predominantly on the individual as the sole source of interest.

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.

Tourism as a Tool for the Fulfilment of the Rights to Rest and Leisure Enshrined in Article No. 24 of the Universal Declaration of Human Rights

2019 ◽  
Vol 76 (3-4) ◽  
pp. 180-188
Author(s):  
Bianca Nicla Romano
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Universal Declaration ◽  
Title V ◽  
Negative Consequences ◽  
Real Right ◽  
Right To Work ◽  
The Individual ◽  
The Right ◽  
Italian Constitution

Art. 24 of the 1948 Declaration of Human Rights recognises and protects the right of the individual to rest and leisure. This right has to be fully exercised without negative consequences on the right to work and the remuneration. Tourism can be considered one of the best ways of rest and leisure because it allows to enrich the personality of the individual. Even after the reform of the Title V this area is no longer covered by the Italian Constitution, the Italian legal system protects and guarantees it as a real right, so as to get to recognize its existence and the consequent compensation of the so-called “ruined holiday damage”. This kind of damage has not a patrimonial nature, but a moral one, and the Tourist-Traveler can claim for it when he has not been able to fully enjoy his holiday - the essential fulcrum of tourism - intended as an opportunity for leisure and/or rest, essential rights of the individual.

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