scholarly journals DISTINCTION BETWEEN TRANSACTIONS REQUIRING AND NOT REQUIRING PERCEPTION: GROUNDS AND SIGNIFICANCE

2021 ◽  
Vol 17 (1(63)) ◽  
pp. 160-176
Author(s):  
Юрий Сергеевич ПОВАРОВ
Keyword(s):  
Legal Interpretation ◽  
Dialectical Logic ◽  
Scientific Methods ◽  
Theoretical Methods ◽  
Legal Norms ◽  
Scientific Potential ◽  
The Law

The proposed scientific grouping of transactions into those requiring and not requiring perception has not been systematically reflected in Russian civil legislation; moreover, the scientific potential of this classification is often questioned. Purpose: to explain the nature and significance of the distinction between transactions requiring and not requiring perception; to analyze the approaches used to establish the criterion for such a distinction; to develop a mechanism for determining whether a transaction belongs to a particular classification group; and to study the permissibility of extrapolation of division into other (rather than unilateral transactions) legal acts. Methods: the author uses general theoretical methods of formal and dialectical logic, as well as specific scientific methods such as legal-dogmatic, legal modeling, comparative legal, interpretation of legal norms. Results: the author proves the irrelevance of ignoring a factor of (not) compulsory perception of will and, as a consequence, the significance of the studied gradation (while the classification of a transaction as requiring or not requiring perception affects the conditions and timing of its legal effects, and the interpretation of the transaction as receptive is necessary to establish and comply with the rules on the procedure and the addressee of the notification of will). The author highlights the main models for reflecting the legal role of perception in the application to transactions that need perception; the author assesses positively the approach to identifying a transaction as (non) receptive based on the direct instructions of the law and the essence of the transaction; the idea of the advisability of adapting the division also to legal acts that are not unilateral transactions is carried out.

Toward a Theory of Legal Interpretation

2014 ◽  
Author(s):  
Scott Soames
Keyword(s):  
Legal System ◽  
Legal Interpretation ◽  
Empirical Theory ◽  
Legal Norms ◽  
Ideal System ◽  
Legal Texts ◽  
Moral Theories ◽  
The Law

This chapter is concerned with the content of legal norms governing the interpretation of legal texts by legally authoritative actors in a legal system. As such, a theory of legal interpretation is a theory of the content of the law, codified or uncodified, governing legally authorized interpreters. Thought of in this way, it is a nonnormative empirical theory related to, but distinct from, (a) empirical theories about what the mass of judges in a particular legal system actually do in the cases before them; (b) moral theories about what they morally should do in particular cases; and (c) politically normative theories about what the role of the judiciary should be in an ideal system. The most important question to be answered by such a theory is, what precisely is required of legally authoritative interpreters, how much and what kind of latitude are they allowed, and what factors are they to take into account in their interpretations?

GAPS IN THE LEGAL REGULATION OF OBTAINING INFORMATION ON A LAWYER`S REQUEST

2018 ◽  
Author(s):  
Volodymyr Kurylo ◽  
◽  
Sergii Korsun ◽  
Keyword(s):  
Relevant Information ◽  
Legal Regulation ◽  
Legal Norms ◽  
Limited Access ◽  
Advocacy Activity ◽  
Legal Uncertainty ◽  
The Law ◽  
Government Body

The article is devoted to the consideration of topical issues of obtaining by citizens and other subjects of information relations, information on relevant requests. The importance of the role of the institution of the legal profession in the field of protecting the rights and freedoms of citizens and legislative regulation of obtaining information on a lawyer's request is highlighted. It is noted that a response to a lawyer's request must be provided within a legally defined and compressed timeframe, and failure to provide information or providing incomplete information to a lawyer's request is punishable as an administrative offense. Analysis of scientific research in the field of advocacy allows us to conclude that the issue of gaps in the legal regulation of obtaining information on a lawyer's request has not yet been studied by domestic legal scholars. The article analyzes the list of subjects, defined by law, who are obliged to provide information to lawyer inquiries. Identified and highlighted those subjects in respect of which such a duty is not legally defined or is not properly regulated by the rules of law. Possible ways of resolving the legal uncertainty of this issue are proposed. The Law of Ukraine "On the Bar and Advocate Activity" defines a lawyer's request as a written appeal of a lawyer to a public authority, local self- government body, their professional and official persons, forms of enterprises and organizations, regardless of ownership and subordination, public associations on the provision of copies of documents required a lawyer to provide legal assistance to a client. The specified determines that state authorities, local self-government bodies, authorities and officials, governments of organizations, organizations, public associations, the required lawyer's request requires the lawyer to provide relevant information, copies except with limited access and copies of documents containing information with limited access. The authors analyze the legislative and legal norms that define the concepts: enterprise, institution, organization and manager. It was found that the normatively formed definitions according to which a society, institution and public association are defined through the concept of "organization", and therefore are the appropriate types of organization. It is established that such entities as cooperatives, associations, corporations, consortiums, concerns, etc., which the legislator does not refer to enterprises, institutions and organizations, may not be forced to provide information at the request of a lawyer due to legal uncertainty and due to constitutional requirements according to which no one can be forced to do what is not provided by law. The authors propose to clearly define the concept of "organization" and propose an appropriate classification of organizations. All existing enterprises, consortia, associations, cooperatives, etc. should be defined precisely through the concept of "organization" and refer to a certain type of organization.Amendments to the Law of Ukraine “On Advocacy and Advocacy Activity” have been proposed, which will make it possible to eliminate the existing shortcomings of the legal regulation of obtaining information at the request of a lawyer.

scholarly journals MIGRATION POLICY: LEGISLATIVE EMBODIMENT AND LEGAL IMPLEMENTATION IN RUSSIA

2020 ◽  
Vol 16 (3) ◽  
pp. 73-82
Author(s):  
Александр Малый
Keyword(s):  
Law Enforcement ◽  
Traditional Approach ◽  
Migration Policy ◽  
The State ◽  
Empirical Methods ◽  
Law Enforcement Agencies ◽  
Dialectical Logic ◽  
Scientific Methods ◽  
Theoretical Methods ◽  
Legal Norms

The relevance of the article is due to the importance of migration policy for the state. The article discusses the issues of liberalization of migration legislation in Russia. The problem of the implementation of legal norms by the law-enforcer is reviewed, the conclusion is drawn that law enforcement agencies and courts are guided by the established practice of a rigid approach to assessing the activituies of subjects of migration relations. Purpose: to focus on the need to liberalize not only migration legislation, but also law enforcement practice, taking into account the changing migration policy in the activities of power bodies. Methods: empirical methods of comparison, description, interpretation; theoretical methods of formal and dialectical logic are used. Specific scientific methods are used: historical, legal-dogmatic, method of interpreting legal norms. Results: the study makes it possible to formulate a number of conclusions regarding the identified direction of migration policy, its reflection in legislation. The preservation of the traditional approach in the activities of law enforcement agencies concerning participants in migration relations is noted. It retains its repressive orientation and is not fully consistent with the proclaimed political course towards the liberalization of migration relations.

scholarly journals PROBLEMS IN THE LEGAL REGULATION OF THE PROVISION OF HEALTH SERVICES: RIGHTS AND OBLIGATIONS OF THE PATIENT

2021 ◽  
Vol 17 (2(64)) ◽  
pp. 100-112
Author(s):  
Андрей Алексеевич ИНЮШКИН ◽  
Полина Сергеевна КУДАШЕВА
Keyword(s):  
Health Services ◽  
Legal Status ◽  
Legal Regulation ◽  
Medical Intervention ◽  
Dialectical Logic ◽  
Scientific Methods ◽  
Legal Norms ◽  
Patient’S Rights ◽  
Special Scientific

The paper analyzes the patient's legal status as a key figure in the provision of health services, identifies and qualifies his rights and obligations, reveals the specifics of some legal opportunities for consumers of health services. The purpose of the paper is a comprehensive analysis of the patient’s rights and obligations under the contract for the provision of medical services. Methods: the authors use empirical methods of comparison, description, interpretation and theoretical methods of formal and dialectical logic. Special scientific methods are used: legal-dogmatic and the method of interpreting legal norms. Results: the authors conclude that it is necessary to develop a clear and complete conceptual apparatus; they propose to expand and structure the list of rights by strengthening their informational component, to detail the set of patient's obligations, and to adjust the norms on the patient's voluntary informed consent to medical intervention. The role of insurers in the medical field in helping patients to realize their legal opportunities is highlighted.

scholarly journals Grounds for Criminalistic Classification of Crimes against Human Life and Health Committed by Convicts Serving Imprisonment Sentences in Places of Deprivation of Liberty

2021 ◽  
pp. 886-895
Author(s):  
Nikolai Shurukhnov ◽  
Oleg Dechkin
Keyword(s):  
Human Life ◽  
Correctional Institutions ◽  
Empirical Methods ◽  
Dialectical Logic ◽  
Scientific Methods ◽  
Theoretical Methods ◽  
Intentional Injuries ◽  
Before And After ◽  
General Scientific

Introduction: the article considers grounds for criminalistic classification of crimes causing intentional injuries committed by convicts serving sentences in places of deprivation of liberty. Purpose: based on the analysis and generalization of theoretical and practical materials, an attempt is made to formulate the most characteristic grounds for the criminalistic classification of the analyzed criminal acts and reveal their contents. Methods: the dialectical method of cognition, general scientific methods of analysis and generalization, empirical methods of description, interpretation; theoretical methods of formal and dialectical logic are used in the research. Results: the article reveals in detail the content of general (territory, situation, community of correctional institutions; prevalence of informal norms of behavior in places of deprivation of liberty, which most convicts adhere to) and private grounds (specifics of personality traits of a criminal, victim and witnesses; specifics of behavior before and after crime commission) for classification of crimes that make up the group for which the investigation method will be worked out. Conclusions: based on the available research, which highlights the universal basis – the criminal legal object, it is concluded that there are two groups of grounds (general and special) for classification of crimes causing intentional harm to life and health committed by convicts serving imprisonment sentences.

THE IMPORTANCE OF THE LAW "ON OPERATIONAL INSPECTION ACTIVITIES" IN THE IMPLEMENTATION OF PREVENTION OF OFFENSES

2021 ◽  
Vol 6 (6) ◽  
pp. 71-78
Author(s):  
Farxod Djurayev ◽  
Keyword(s):  
Legal Status ◽  
Legal Protection ◽  
Law Enforcement Officers ◽  
Joint Work ◽  
Basic Principles ◽  
The Law ◽  
Causes Of Crime ◽  
Prevention Of Crime

The article is devoted to the prevention of crime, maintenance of public order and early crime prevention, identification and elimination of the causes of crime in each district, family and individual, classification of each district depending on the crime situation in these regions and joint work to attract all forces and means to identify and eliminate the causes of crime, the role of the law "On operational-search activities" in the prevention of offenses, the concept of operational-search activities, the main tasks, basic principles; bodies carrying out operational-search activities, their legal status; types of operational-search measures and their comments regarding the procedure for conducting a search; social and legal protection of law enforcement officers and persons assisting in the conduct of such events, as well as their family members

scholarly journals The Theory of Interpretation in Solving Contemporary Legal Issues: With A Focus on the Instrument of Ijtihad

2018 ◽  
Vol 150 ◽  
pp. 05056
Author(s):  
Abdulrahman M.A.Albelahi ◽  
A. Ali ◽  
Faten Mohmed ◽  
Metwally Ali
Keyword(s):  
Islamic Law ◽  
Legal Theory ◽  
Legal Issues ◽  
Legal Interpretation ◽  
Way Of Life ◽  
Essential Question ◽  
Judicial Reasoning ◽  
The Law ◽  
Law And Legislation

Since the beginning, legal theory has concerned itself with the establishment of principles and precepts that govern the procedure of legal interpretation, from the initial stages of the judicial reasoning down to the promulgation of ruling and their implementation, Islam is a total way of life. Muslims are obliged to abide by the rules of Allah in every aspect of their lives, always and wherever they live. However, the actual rules of Allah as given in the Qur’an and the sunna are limited. The Qur’an contains only six hundred verses directly related to laws, and there are approximately two thousand hadiths. The function of interpretation is to discover the intention of the Lawmaker of the matter, therefore, interpretat primarily concerned with the discovery of that which is rot self-evident the objective of interpretation is to ascertain the intention c the Lawmaker with regard to what has been left unexpressed as a matter of necessary interference from the surrounding circumstances. Sometimes, the textual sources did not provide detailed guidelines in which to derive the law, and then the role of interpretation is important to determine the law. In Islamic law the role of Ijtihad undoubtedly important in order to meet new problems. But some of the Jurist contended that the role of Ijtihad had ended and we have to follow the rule that has been stated. An explanation given to this trend is that a point had been reached at which all essential question of law had been thoroughly discussed and further deliberation was deemed unnecessary. In Common law, man-made law and legislation are related to one another within a philosophy of law. Parliament makes law and it is the duty of the courts to give effect to them if properly enacted. While courts may rule that a particular statute or section is invalid for various reasons such as unconstitutionality, they cannot say, "We shall change this Act because it is not appropriate". That function belongs to Parliament (Wu Min Aun 1990: 120). So as in Islamic law, the Lawmaker is Allah S.w.t and the sacred text (Quran) is legislated due to His intention whereas Sunnah of the Prophet Muhammad is enacted due to the Prophet's intention. Therefore, Ulama of Usul Fiqh, in making any Ijtihad, they are du y bound to be guided by Quran and Sunnah.

scholarly journals PERSPEKTIF HUKUM SEBAGAI LANDASAN PEMBANGUNAN EKONOMI DI INDONESIA (SEBUAH PENDEKATAN FILSAFAT)

Jurnal Hukum ◽  
1970 ◽  
Vol 28 (2) ◽  
pp. 929
Author(s):  
Zulfi Diane Zaini
Keyword(s):  
Economic Development ◽  
Economic Behavior ◽  
Economic Democracy ◽  
Legal Norms ◽  
Economic Area ◽  
Margin Of Appreciation ◽  
National Ideology ◽  
The Law ◽  
Effective Function

The role of law in economic development of a nation is something that cannot be ignored its existence. So it is very obvious, if the law of a nation is effective, economic development would be easy to implement. But otherwise if the law has not effective function, it can definitely be an adverse impact on economic development. This condition also exists to Indonesia as a country which is still developing the economic area. Moreover, when Indonesia declared in its constitution as a legal state (rechtstaat). From this it is also implied that Indonesia wants two things: Firstly, the law is expected to function, and secondly, the law can serve, then economic development would be easy to be realized.The economic nationalism spirit in the globalization era shows increasing realization of the urgency to be the national economy which is strong, tough and independent. Economic Democracy is based on the popular and family, as well as cooperative efforts animates economic behavior of individuals and communities. Thus Indonesia Economic Law in the form of the Margin of Appreciation becomes benchmark for the justification of the legal norms which is enforced so the core values of Pancasila as the national ideology is kinship with the community life ideal form in society, is society kinship, so in the field of economics, Pancasila ideology wants kinship (familial Economic Democracy Article 33 of the 1945 Constitution), which is realized through the welfare state.Keywords: Law, Basis, Economic

Classification of obligations and the impact of constructivist epistemologies

Legal Studies ◽  
1997 ◽  
Vol 17 (3) ◽  
pp. 448-482 ◽  
Author(s):  
Geoffrey Samuel
Keyword(s):  
Internal Structure ◽  
Legal Knowledge ◽  
The Law ◽  
The Impact ◽  
Epistemological Point ◽  
Legal Classification

In December 1996 Classification of Obligations formed the topic of one of a series of SPTL seminars under the general title of Pressing Problems in the Law. It may, perhaps, be asked quite why classification is a pressing problem, for it is by no means clear from the papers themselves that common lawyers have suddenly become more concerned about the internal structure of the ‘seamless web’. Nevertheless the seminar was a valuable opportunity to reflect upon a subject that is at least a useful vehicle for thinking about legal knowledge. Legal classification, in other words, raises questions of an epistemological nature. The purpose of this present paper is to pursue this epistemological point in an attempt to reveal how classification of symbolic knowledge (legal propositions or rules) hides much deeper issues about the role of non-symbolic knowledge (symmetries, images and isomorphs) in the formulation of legal solutions in the law of obligations.

scholarly journals Servants or Masters? Linguistic Aids in Legal Interpretation

2021 ◽  
Vol 10 (1) ◽  
pp. 73-102
Author(s):  
Paulina Konca
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Legal Regulations ◽  
Correct Interpretation ◽  
Fourth Section ◽  
The Third ◽  
Ordinary Meaning ◽  
Legal Literature ◽  
The Law

This paper presents the role of some intrinsic sources in legal interpretation. Some of linguistic aids follow from provisions of the law and other from the commonly accepted ruling practice or views expressed in literature. The position of those aids was verified through the analysis of case-law, literature, and provisions of law. The first section and second section focus on the priority of plain meaning rule and intrinsic sources in legal interpretation which is strongly emphasized in legal literature, case-law and the interpretative provisions of many countries. Next, it presents how certain linguistic tools work in case law practice, what problems they can cause and what problems they can solve. The third point addresses the use of dictionaries as tools of linguistic interpretation. The fourth section explores the role of selected interpretative canons often found in legal regulations and case law practice: ordinary meaning canon, gender/number canon, ejusdem generis canon, presumption of consistent usage and prefatory-materials canon. It is concluded that the priority of a linguistic interpretation is not absolute and can never be understood as its exclusivity. Linguistic tools are not in themselves determinants of correct meaning. In order to make a correct interpretation, it is necessary not to be guided, by indications labelled as objective, sometimes artificially imposed, but by the intention of the legislator, which such tools may discover and should only be used for that purpose. 

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