Philisophy and Theory of Law

2015 ◽  
Keyword(s):  
Public Policy ◽  
Human Resource ◽  
Administrative Law ◽  
Corporate Law ◽  
Medical Law ◽  
The Real ◽  
The Law ◽  
Theory Of Law ◽  
Substantive Law ◽  
Massive Information

Understanding of the philosophy and theory behind the law is significance to law makers, legal practitioners, academicians and laymen. The rationales are to have some understanding of public policy and the real aim of the laws that made up particular practices or the root of practices. Therefore, this book highlight selected philosophy and theory of laws in the area of commercial, financial and corporate law; medical law; constitutional and administrative law and lastly human resource law. The massive information and knowledge in this book will benefits law makers, legal practitioners, academicians, universities students in understanding the philosophy and theory of the law first, before appreciating and applying the substantive law in their profession and life.

scholarly journals AGREEMENT OF THE WILLS FROM THE CONTRACTUAL PARTIES AS ONE OF THE CONDITIONS TO MAKE A DEAL

2018 ◽  
Vol 28 (6) ◽  
pp. 1953-1957
Author(s):  
Aleksandra Patoska
Keyword(s):  
Administrative Law ◽  
The Other ◽  
Written Text ◽  
Theoretical Structure ◽  
Frequent Use ◽  
The Will ◽  
The Law ◽  
Theory Of Law ◽  
The One ◽  
The Right

Every agreement of the wills among two or more persons who make mutual law relation or changes or calls of the existing law relation is named as a contrast in the theory of law. According its characteristics, the law relations may be different - obligatorious, familliarious, hereditorious, administrativ, merchanditorious etc., because of what the contracts as instruments of law regulations of that relationships are published in different law branches, like: familly law, heretige law, administrative law, merchandise law etc. Regarding its theoretical structure and frequent use and meaning in the law practice, the obligatory contracts are separated - those which may make obligatory relationships.The obligatory relationships are law connection among two or more parties from which one of them has the right to ask for, and the other is obligated to give the asked or to do, or not to do, or to bear it. The essence of the obligatory relation is in the right of the creditor to ak from the debtor to fulfille his obligation, which means - basicly - they are in creditor - debtor's relationships. Therefore, the obligatory contracts are double law acts according to which, in the agreement of the wills between two parties, the one part obeys to give something, to do or not to do something, or to bear something in the benefit of the other part, the part which takes that obligation as its right.The agreement of the wills of the contractual parties is one of the four common conditions of the genezes of a contract. It is realized by equality of the different whishes and different aims which the parties like to reach by making an agreement. There are the questions which I am trying to answer in my written text: about law relevant will, the atributes which the will should possesse, the ways of giving the will and, at the end, coordinating the wills of the two parts which goes to make the contact. The coordinating of the wills should be done on a legalized or usual way, frequently or usually by giving an offer from the first part and reaching the offer from the other one. That is the most usual mode of implementation the reunification of the wills between the contractual parts.

A Sham Legal Phenomenon: The Concept and Legal Composition

Legal Concept ◽  
2021 ◽  
pp. 91-95
Author(s):  
Polina Zvereva ◽  
◽  
Dmitry Kirillov ◽  
Keyword(s):  
Law Enforcement ◽  
Administrative Law ◽  
Tax Law ◽  
Legal Research ◽  
The Real ◽  
Scope Of Application ◽  
Theory Of Law ◽  
Legal Consequences ◽  
Law Making ◽  
Legal Meaning

Introduction: in recent decades, there has been an increase in the number of legal phenomena in which nominal properties do not correspond to the real ones. So, even such terms as, for example, the nominal value of an asset and the like began to be included in the laws. The discrepancy between nominal and real properties has long been typical for sham transactions. Therefore, the researchers considered it appropriate to extend the rules on such transactions to the legal phenomena of various branches. So, in tax law, it is proposed to talk about a sham counterparty and apply the legal consequences to the real one. It is also important that in recent years the concept of “sham object” has appeared in the acts of financial and administrative law. The accumulation of relevant circumstances predetermined the purpose of the study – based on the generalization of the construction of a sham transaction to reveal the composition of the concept of “sham legal phenomenon”. Results: the prerequisites for the formulation of the concept of “sham legal phenomenon” are revealed. The expediency of introducing this concept into the legal circulation is characterized. The relevance of extrapolating the construction of a sham transaction to sham legal phenomena is justified. It is shown that the elements of the composition of a sham legal phenomenon are the covering phenomenon claimed by the participants as real; the covered (real) legal phenomenon; the legal consequences of the covered phenomenon; the participants of the legal phenomenon seeking to achieve the legal consequences characteristic of the covered phenomenon. The rule on the legal meaning of the consequences of the covered legal phenomenon is formulated. The scope of application of the results is the theory of law, the branch legal sciences, scientific legal research, law enforcement, law-making. Conclusions: it is necessary to study the scale, causes and consequences of the prevalence of sham legal phenomena in various branches of law.

A “Defense” of Cognitivism and the Law

2021 ◽  
pp. 139
Author(s):  
JUAN CIANCIARDO
Keyword(s):  
The Real ◽  
Legal Norms ◽  
Moral Content ◽  
The Law ◽  
Theory Of Law ◽  
Ultimate Objective ◽  
The Impact ◽  
The Way

This paper consists of a journey marked by three important milestones: (i) an overview of the controversy between cognitivism and non-cognitivism, (ii) a review of the different theoretical positions around this controversy, and (iii) an assessment on the impact of such controversy in theory of law and in the way the work of the jurist is understood. The ultimate objective is to demonstrate that, if followed coherently, noncognitivism can only lead to the unintelligibility of the legal phenomenon. Jointly, and as corollary of the latter, it will be revealed that even highly convinced advocates of noncognitivism implicitly or unintentionally ground their legal theorization in cognitivisttype of assumptions. The author adds that a non-cognitivist judge has a serious risk of incurring in a certain type of professional hypocrisy that would consist in camouflaging the real reasons that led her to choose for the application of a norm instead of another, or to choose one method of interpretation over others, with empty formulas that have nothing to do with those real reasons. As we will see, a non-cognitivist jurist approaches legal norms from a very different perspective than a cognitivist. Although it may sound shocking, justice has little or nothing to do with the work of the non-cognitivist from his perspective. This means that laws can have whatever moral content, that their reasonableness and/or their justice value is defined by the legislator, and that most of the time there are no strict reasons that justify what is that the legislator did when passing a law.

scholarly journals To the question of functionality of administrative compulsion

2020 ◽  
pp. 27-35
Author(s):  
Aleksei Valentinovich Kurakin
Keyword(s):  
Law Enforcement ◽  
General Theory ◽  
Theoretical Framework ◽  
Administrative Law ◽  
Theoretical Research ◽  
Work Adjustment ◽  
Scientific Development ◽  
Principal Function ◽  
The Law ◽  
Theory Of Law

This article explores the problems of application of measures of administrative compulsion, pays attention to functionality of measures of administrative compulsion, as well as state the thesis on the fact that despite vast attention to the issue of administrative compulsion, its functions lack scientific development. Considering the theoretical research, the author notices that functionality of administrative compulsion is predefined by the functionality of separate measures of administrative compulsion. Therefore, emphasis is made on the functions of some of the administrative compulsory measures. The theoretical framework of the study is comprised of the works of general theory of law and recent achievements in the science of administrative law. The conclusions of the research consist in a number of proposals on lowering the level of administrative compulsion in the law enforcement work, adjustment of the goals of some types of measures of administrative compulsion, as well as improvements to the positions of legislation determining functionality of certain measures of administrative compulsion. The article highlights the fact that the principal function of administrative compulsion consists in protection of rights and liberties of the citizens.

PERSINGGUNGAN KEWENANGAN MENGADILI PENYALAHGUNAAN DISKRESI ANTARA PENGADILAN TUN DAN PENGADILAN TIPIKOR / INTERCEPTION OF JUSTICE AUTHORITY OF DISCRETION ABUSE BETWEEN ADMINISTRATION COURT AND CORRUPTION COURTS

2018 ◽  
Vol 7 (2) ◽  
pp. 213
Author(s):  
Budi Suhariyanto
Keyword(s):  
Supreme Court ◽  
Criminal Law ◽  
Administrative Law ◽  
The State ◽  
Government Officials ◽  
Criminal Process ◽  
The Supreme Court ◽  
State Finance ◽  
The Law ◽  
To Receive

Diskresi sebagai wewenang bebas, keberadaannya rentan akan disalahgunakan. Penyalahgunaan diskresi yang berimplikasi merugikan keuangan negara dapat dituntutkan pertanggungjawabannya secara hukum administrasi maupun hukum pidana. Mengingat selama ini peraturan perundang-undangan tentang pemberantasan tindak pidana korupsi tidak merumuskan secara rinci yang dimaksudkan unsur menyalahgunakan kewenangan maka para hakim menggunakan konsep penyalahgunaan wewenang dari hukum administrasi. Problema muncul saat diberlakukannya Undang-Undang Nomor 30 Tahun 2014 dimana telah memicu persinggungan dalam hal kewenangan mengadili penyalahgunaan wewenang (termasuk diskresi) antara Pengadilan Tata Usaha Negara dengan Pengadilan Tindak Pidana Korupsi. Pada perkembangannya, persinggungan kewenangan mengadili tersebut ditegaskan oleh Peraturan Mahkamah Agung Nomor 4 Tahun 2015 bahwa PTUN berwenang menerima, memeriksa, dan memutus permohonan penilaian ada atau tidak ada penyalahgunaan wewenang (termasuk diskresi) dalam Keputusan dan/atau Tindakan Pejabat Pemerintahan sebelum adanya proses pidana. Sehubungan tidak dijelaskan tentang definisi dan batasan proses pidana yang dimaksud, maka timbul penafsiran yang berbeda. Perlu diadakan kesepakatan bersama dan dituangkan dalam regulasi tentang tapal batas persinggungan yang jelas tanpa meniadakan kewenangan pengujian penyalahgunaan wewenang diskresi pada Pengadilan TUN.Discretion as free authority is vulnerable to being misused. The abuse of discretion implicating the state finance may be prosecuted by both administrative and criminal law. In view of the fact that the law on corruption eradication does not formulate in detail the intended element of authority abuse, the judges use the concept of authority abuse from administrative law. Problems arise when the enactment of Law No. 30 of 2014 triggered an interception in terms of justice/ adjudicate authority on authority abuse (including discretion) between the Administrative Court and Corruption Court. In its development, the interception of justice authority is affirmed by Regulation of the Supreme Court Number 4 of 2015 that the Administrative Court has the authority to receive, examine and decide upon the appeal there is or there is no misuse of authority in the Decision and / or Action of Government Officials prior to the criminal process. That is, shortly before the commencement of the criminal process then that's when the authority of PTUN decides to judge the misuse of authority over the case. In this context, Perma No. 4 of 2015 has imposed restrictions on the authority of the TUN Court in prosecuting the abuse of discretionary authority.

KEBIJAKAN KRIMINALISASI DALAM UNDANG-UNDANG DI BIDANG POLITIK

Jurnal Hukum ◽  
2016 ◽  
Vol 31 (1) ◽  
pp. 1592
Author(s):  
Hanafi Amrani
Keyword(s):  
Criminal Law ◽  
Administrative Law ◽  
Moral Values ◽  
Criminal Sanction ◽  
Criminal Sanctions ◽  
The Law

AbstrakArtikel ini membahas dua permasalahan pokok: pertama, kriteria yang digunakan oleh pembentuk undang-undang di bidang politik dalam menetapkan suatu perbuatan sebagai perbuatan pidana (kriminalisasi); dan kedua, fungsi sanksi pidana dalam undang-undang di bidang politik. Terkait dengan kriminalisasi, undang-undang di bidang politik yang termasuk ke dalam hukum administrasi, maka pertimbangan dari pembuat undang-undang tentu saja tidak sekedar kriminalisasi sebagaimana diatur dalam ketentuan hukum pidana dalam arti sebenarnya. Hal tersebut disebabkan adanya pertimbangan-pertimbangan tertentu. Pertama, perbuatan yang dilarang dalam hukum pidana administrasi lebih berorientasi pada perbuatan yang bersifat mala prohibita, sedangkan dalam ketentuan hukum pidana yang sesungguhnya berorientasi pada perbuatan yang bersifat mala in se. Kedua, sebagai konsekuensi dari adanya penggolongan dua kategori kejahatan tersebut, maka pertimbangan yang dijadikan acuan juga akan berbeda. Untuk yang pertama (mala prohibita), sanksi pidana itu dibutuhkan untuk menjamin ditegakkannya hukum administrasi tersebut. Dalam hal ini sanksi pidana berfungsi sebagai pengendali dan pengontrol tingkah laku individu untuk mencapai suatu keadaan yang diinginkan. Sedangkan untuk yang kedua (mala in se), fungsi hukum pidana dan sanksi pidana lebih berorientasi pada melindungi dan mempertahankan nilai-nilai moral yang tertanam di masyarakat tempat di mana hukum itu diberlakukan atau ditegakkan. Kata Kunci: Kebijakan, Kriminalisasi, Undang-Undang PolitikThis article discusses two main problems: firstly, the criteria used by the legislators in the field of politics in determining an act as a criminal act (criminalization); secondly, the function of criminal sanctions in legislation in the field of politics. Associated with criminalization, legislation in the field of politics that is included in administrative law, the consideration of the legislators of course not just criminalization as stipulated in the provisions of criminal law in the true sense. This is due to certain considerations. Firstly, the act which is forbidden in the administration of criminal law is more oriented to act is malum prohibitum offences, whereas in actual criminal law provisions in the act are mala in se offences. Secondly, as a consequence of the existence of two categories of classification of the crime, then consideration will also vary as a reference. For the first (mala prohibita), criminal sanctions are needed to ensure the enforcement of the administrative law. In this case the criminal sanction serves as controller and controlling the behavior of individuals to achieve a desired state. As for the second (mala in se), the function of criminal law and criminal sanctions is more oriented to protect and maintain the moral values that are embedded in a society where the law was enacted or enforced.

THE 2017 AMENDMENTS TO THE LAW REFORM (MARRIAGE AND DIVORCE) ACT 1976: A MILESTONE OR A STONE’S THROW IN THE DEVELOPMENT OF MALAYSIAN FAMILY LAW?

2020 ◽  
Vol 28 (2) ◽  
pp. 449-479
Author(s):  
Sridevi Thambapillay
Keyword(s):  
Child Custody ◽  
Family Law ◽  
Law Reform ◽  
The Real ◽  
The Past ◽  
Marriage And Divorce ◽  
Conversion To Islam ◽  
Family Issues ◽  
The Law ◽  
Muslim Family

The Law Reform (Marriage and Divorce) Act 1976 (LRA) which was passed in 1976 and came into force on 1st March 1982, standardized the laws concerning non-Muslim family matters. Many family issues concerning non-Muslim have emerged ever since, the most important being the effects of unilateral conversion to Islam by one of the parties to the marriage. There has been a lot of public hue and cry for amendments to be made to the LRA. After much deliberation, the Malaysian Parliament finally passed the amendments to the LRA in October 2017, which came into force in December 2018. Although the amendments have addressed selected family law issues, the most important amendment on child custody in a unilateral conversion to Islam was dropped from the Bill at the last minute. Howsoever, at the end of the day, the real question that needs to be addressed is whether the amendments have resolved the major issues that have arisen over the past four decades? Hence, the purpose of this article is as follows: first, to examine the brief background to the passing of the LRA, secondly, to analyse the 2017 amendments, thirdly, to identify the weaknesses that still exist in the LRA, and finally, to suggest recommendations to overcome these weaknesses by comparing the Malaysian position with the Singaporean position. In conclusion, it is submitted that despite the recent amendments to the LRA, much needs to be done to overcome all the remaining issues that have still not been addressed.

The Common Law in Colonial America

2018 ◽  
Author(s):  
William E. Nelson
Keyword(s):  
New York ◽  
Colonial America ◽  
Main Theme ◽  
Revolutionary Movement ◽  
American Colonies ◽  
American Law ◽  
Fourth Volume ◽  
The Law ◽  
Substantive Law ◽  
The Revolution

This volume begins where volumes 2 and 3 ended. The main theme of the four-volume project is that the law of America’s thirteen colonies differed profoundly when they first were founded, but had developed into a common American law by the time of the Revolution. This fourth volume focuses on what was common to the law of Britain’s thirteen North American colonies in the mid-eighteenth century, although it also takes important differences into account. The first five chapters examine procedural and substantive law in colonies and conclude that, except in North Carolina and northern New York, the legal system functioned effectively in the interests both of Great Britain and of colonial localities. The next three chapters examine changes in law and the constitution beginning with the Zenger case in 1735—changes that ultimately culminated in independence. These chapters show how lawyers became leading figures in what gradually became a revolutionary movement. It also shows how lawyers used legal and constitutional ideology in the interests, sometimes of an economic character, of their clients. The book thereby engages prior scholarship, especially that of Bernard Bailyn and John Phillip Reid, to show how ideas and constitutional values possessed independent causal significance in leading up to the Revolution but also served to protect institutional structures and socioeconomic interests that likewise possessed causal significance.

Authority by Aggregation and Abstraction

2017 ◽  
Author(s):  
Rebecca Skreslet Hernandez
Keyword(s):  
Pragmatic Theory ◽  
Legal Thought ◽  
Universal Principles ◽  
Legal Literature ◽  
Religious Learning ◽  
The Law ◽  
Substantive Law ◽  
Lasting Influence

In addition to his views on ijtihād and tajdīd, al-Suyūṭī’s lasting influence in Islamic legal thought lies in the area of legal precepts (pithy maxims or questions that sum up areas of the law). Al-Suyūṭī’s al-Ashbāh wa-l-naẓāʾir stands as a core work in this genre of legal literature and is still a popular textbook for students at Egypt’s premier institution of religious learning, al-Azhar. Using the pragmatic theory of Grice and others, I argue that legal precepts fulfill a number of key discursive functions for the jurist. It is with al-Suyūṭī’s Ashbāh that he is most successful in asserting his authority as an aggregator, abstractor, and framer of the law. The power of framing lies in the ability to distill key universal principles from the vast corpus of Islamic substantive law and to assert that these principles represent the essence and spirit of the Sharīʿa.

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