scholarly journals The Hermeneutic Method in Modern Domestic Jurisprudence

2019 ◽  
Vol 2 (4) ◽  
pp. 39-49
Author(s):  
Vladimir Valentinovich Kozhevnikov
Keyword(s):  
Max Weber ◽  
Scientific Article ◽  
Friedrich Schleiermacher ◽  
Historical Aspect ◽  
Legal Norms ◽  
Methodological Basis ◽  
Historical Method ◽  
Weak Points ◽  
The Law ◽  
Hans Georg Gadamer

This scientific article deals with the problem of the use of the hermeneutic method of obtaining knowledge of legal phenomena. The purpose of the article is to show the potential of the hermeneutic method in the field of law.  In the furtherance of this goal, the following objectives were set: 1) to justify the significance of the methodological basis of jurisprudence; 2) to consider the concept of hermeneutics in the historical aspect (views of Aristotle, Wilhelm Diltey, Friedrich Schleiermacher, Friedrich Nietzsche, Hans-Georg Gadamer, Max Weber and others); 3) to analyze the views of domestic scientists who justifying the necessity of using of the hermeneutic method by the study of legal phenomena (Djangir Abbasovich Kerimov, Mikhail Mikhailovich Rassolov, Petr Moiseyevich Rabinovich, Vitaly Andreevich Suslov, Ilya Lvovich Chestnov); 4) to show weak points of the hermeneutic method in jurisprudence, arguments of opponents of this approach (Vladimir Mikhailovich Syryh, Igor Yurevich Kozlikhin, Vyacheslav Nikolayevich Zhukov and others). The result of the conducted research were the following provisions: 1) without denying some fruitfulness of the metaphysics which is the basis of the analyzed method, we notice that the hermeneutics method is not applied practically in the law because there is no the corresponding technique and it is replaced with a historical method of interpretation of legal norms. In conclusion, it should be stressed that even those scientists who placed certain research hopes on the legal hermeneutics have now begun to doubt its potential, believing that this approach of the study of the law as an independent one has not yet taken place.

scholarly journals ABOUT THE HERMENEUTIC METHOD IN LAW

2020 ◽  
Vol 17 (1) ◽  
pp. 15-26
Author(s):  
Vladimir Valentinovich Kozhevnikov
Keyword(s):  
Scientific Article ◽  
Legal Interpretation ◽  
New Paradigm ◽  
Historical Aspect ◽  
Legal Norms ◽  
The Subject ◽  
Research Plan ◽  
The Law

Introduction. This scientific article is devoted to the consideration of the problem of using the hermeneutic method of cognition of legal phenomena in modern domestic jurisprudence. Purpose. The purpose of the article is to show the potential possibilities of the hermeneutic method in the field of law. To achieve this goal, the following tasks were set: 1) to substantiate the significance of the methodological foundations of jurisprudence; 2) to consider the issue of the concept of hermeneutics in a historical aspect (the views of Aristotle, V. Dilthey, F. Schleiermacher, F. Nietzsche, G.G. Gadamer, M. Weber and others; 3) to analyze the views of Russian scientists substantiating the need for the hermeneutic method in the study of legal phenomena (D.A. Kerimov, M.M. Rassolov, P.M. Rabinovich, V.A. Suslov, I.L. Chestnov); 4) show the weaknesses of the hermeneutic method in jurisprudence, the arguments of the opponents of this approach (V.M. Syrykh, I.Yu. Kozlikhina, V.N. Zhukov and others). Methodology. When writing this article, we used a complex of both special (philological, cybernetic, psychological and others) and private-scientific (formal-legal, interpretation of law and others) methods of studying legal reality. Results. The result of the study in the framework of this article was the following: without denying some fruitfulness of metaphysics, which is the basis of the analyzed method, we note that the hermeneutics method is practically not used in jurisprudence due to the lack of an appropriate methodology and is replaced by the historical way (method) of interpreting legal norms. Conclusion. In conclusion, it is summarized that even those scholars who pinned certain hopes on legal hermeneutics in the research plan have now begun to doubt its potential, believing that this approach to law as an independent has not yet taken place. Paying attention to the fact that the last decade is characterized by the search for a new paradigm, they are increasingly trying to find it outside the law, to attract to the study of law the knowledge developed in the bosom of other sciences, it is emphasized that such attempts should be welcomed, but only if they deepen our knowledge of law, and not of the subject of those sciences to which we turn.

Hermeneutiek en kwalitatief onderzoek: historische wortels en eigentijdse relevantie

KWALON ◽  
2019 ◽  
Vol 24 (1) ◽  
Author(s):  
Adri Smaling
Keyword(s):  
Qualitative Research ◽  
Qualitative Methodology ◽  
Max Weber ◽  
Paul Ricoeur ◽  
Qualitative Inquiry ◽  
Kwalitatief Onderzoek ◽  
Friedrich Schleiermacher ◽  
Wilhelm Dilthey ◽  
Paul Ricœur ◽  
Hans Georg Gadamer

Hermeneutics and qualitative research: historical roots and contemporary relevance Some ideas from the hermeneutic philosophers Friedrich Schleiermacher, Wilhelm Dilthey, Hans-Georg Gadamer, Paul Ricoeur, the hermeneutic sociologist and philosopher of science Max Weber are discussed insofar as their ideas have influenced and are still relevant to qualitative methodology. Remarkably, hermeneutics and phenomenology are nowadays fruitfully combined within qualitative inquiry.

Оскарження рішень, дій чи бездіяльності публічної адміністрації як вид гарантії забезпечення надання публічних послуг у судовому порядку

2019 ◽  
Vol 24 ◽  
Author(s):  
О. В. Бойко
Keyword(s):  
Public Administration ◽  
Judicial Review ◽  
Public Services ◽  
Legal Regulation ◽  
Scientific Article ◽  
Preliminary Stage ◽  
The Law ◽  
The Moment ◽  
Court Hearing

The scientific article identifies the peculiarities of appealing the decisions, actions or omissions of public administration subjects on the provision of public services at the stage of initiation and preparation for judicial review of an administrative case. The author substantiates the feasibility of improving the legal regulation of the procedure for holding a preliminary hearing before the court hearing of the case. In particular, it is considered expedient to set the terms of the preparatory meeting from the moment of receipt of the administrative claim, as well as to determine the cases when the parties are not reconciled.It is established that the preliminary stage of the court hearing often ends with the conclusion of the preliminary proceedings and the appointment of the case to trial in the field of public services. This is not against the law. However, it should be borne in mind that in accordance with Art. 121 of the CAS of Ukraine such a decision is delivered by the consequences of preparatory proceedings, not the previous court hearing. Obviously, preparatory proceedings are not limited to, and do not always end at, a previous court hearing. Preparation may continue after a preliminary hearing. Therefore, the decision to close the preliminary proceedings and assign the case to trial after the consequences of the previous court hearing can only be made if the judge has taken all the measures necessary to hear the case. If during a previous court hearing in the field of public services, to which all persons involved in the case have arrived, the issues necessary for its consideration have been resolved, then, with the written consent of these persons, a court hearing may be initiated on the same day. In this case, the termination order is also delivered.

STUDI KASUS PENETAPAN KEMBALI TARIF DAN/ATAU NILAI PABEAN (SPKTNP) OLEH DIREKTUR JENDERAL BEA DAN CUKAI: TINJAUAN PUTUSAN PENINJAUAN KEMBALI MAHKAMAH AGUNG RI

2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Akhmad Firdiansyah ◽  
Wachid Hasyim ◽  
Yonathan Agung Pahlevi
Keyword(s):  
Qualitative Analysis ◽  
Supreme Court ◽  
Director General ◽  
Import Duty ◽  
Legal Norms ◽  
The Supreme Court ◽  
The Law

ABSTRACT In accordance with the mandate of Article 23A of the 1945 Constitution, all tax stipulations must be based on the law. To carry out the mandate in accordance with Article 17 of the Customs Law Number 17 of 2006, the Director General of Customs and Excise is given the attributive authority to issue reassignment letter on Customs Tariff and / or Value for the calculation of import duty within two years starting from the date of customs notification carried out through a mechanism of audit or re-research. To examine the application of these legal norms, there are currently Supreme Court (MA) Judgment (PK) decisions that accept PK applications from PK applicants and question the legality of issuing SPKTNP by the Director General of BC. This study uses explosive qualitative analysis to analyze the issuance of SPKTNP by the Director General of BC. The results of this study indicate that the Supreme Court is of the view that the issuance of SPKTNP by the Director General of BC is a legal defect, while DGCE considers the issuance of SPKTNP by the Director General of BC according to the provisions.Key words: official decision, reassignment letter, DCGE  ABSTRAKSesuai amanah Pasal 23A Undang-Undang Dasar 1945 Segala penetapan pajak harus berdasar undang-undang. Untuk menjalankan amanah tersebut sesuai Pasal 17 Undang-Undang Kepabeanan Nomor 17 Tahun 2006 Direktur Jenderal Bea dan Cukai (Dirjen BC) diberikan kewenangan atributif untuk menerbitkan Surat Penetapan Kembali Tarif dan/atau Nilai Pabean (SPKTNP) guna penghitungan bea masuk dalam jangka waktu dua tahun terhitung sejak tanggal pemberitahuan pabean yang dilakukan melalui mekanisme audit atau penelitian ulang. Untuk meneliti penerapan norma hukum tersebut dewasa ini terdapat putusan Peninjauan Kembali (PK) Mahkamah Agung (MA) yang menerima permohonan PK dari pemohon PK dan mempermasalahkan legalitas penerbitan SPKTNP oleh Dirjen BC. Penelitian ini mengunakan analisis kualitatif eksplotarif untuk menganalisis penerbitan SPKTNP oleh Dirjen BC. Hasil penelitian ini menunjukkan bahwa MA berpandangan penerbitan SPKTNP oleh Dirjen BC adalah cacat hukum, sedangkan DJBC beranggapan penerbitan SPKTNP oleh Dirjen BC telah sesuai ketentuan.Kata Kunci: penetapan pejabat, SPKTNP, Direktur Jenderal Bea dan Cukai.

Normative propositions of the International Tribunal for the Law of the Sea

2021 ◽  
Vol 11 (3) ◽  
pp. 3-18
Author(s):  
Roman Kolodkin
Keyword(s):  
International Law ◽  
Legal Reasoning ◽  
Law Of The Sea ◽  
International Tribunal ◽  
Legal Norms ◽  
Judicial Decisions ◽  
The Law ◽  
Obiter Dictum ◽  
International Law Commission ◽  
Advisory Opinions

Normative propositions of the international courts, including these of the International Tribunal for the Law of the Sea, are considered in the paper as provisions in the judicial decisions and advisory opinions, spelling out, formulating or describing international law norms, prescriptions, prohibitions or authorizations, which are applicable, in the court’s view, in the case at hand and the similar cases. Such a proposition is considered to be a description of a legal norm, its spelling out by a court, but not a norm or its source. In contrast with legal norms, judicial normative propositions are descriptive, not prescriptive; they may be true or wrong. Normative propositions are not transformed into norms solely by their repetition in judicial decisions. The author considers not only ITLOS decisions but also the Tribunal’s and its Seabed disputes chamber advisory opinions containing normative propositions to be subsidiary means for the determination of the rules of law under article 38(1(d)) of the International Court of Justice Statute. The legal reasoning of the Tribunal’s decision, not its operative provisions, usually features normative propositions. While strictly speaking, the decision addresses the parties of the dispute, normative propositions in the reasoning are in fact enacted by the Tribunal urbi et orbi aiming at all relevant actors, ITLOS including. They bear upon substantive and procedural issues, rights and obligations of relevant actors; they may also define legal notions. The Tribunal provides them as part of its reasoning or as obiter dictum. It is those provisions of the Tribunal’s decisions that are of particular importance for international law through detailing treaty- and verbalizing customary rules. However, the States that have the final and decisive say confirming or non-confirming the content and binding nature of the rules spelt out or described by the Tribunal in its normative propositions. Meanwhile, States are not in a hurry to publicly react to the judicial normative propositions, particularly to those of ITLOS, though they refer to them in pleadings or when commenting on the International Law Commission drafts. At times, States concerned argue that international judicial decisions are not binding for third parties. While the States are predominantly silent, ITLOS reiterates, develops and consolidates normative propositions, and they begin to be perceived as law. The paper also points to the possibility of the Tribunal’s normative propositions being not correct and to the role of the judges’ dissenting and separate opinions in identifying such propositions.

Debt transfer agreement by the creditor: legal forms, procedure, meaning

2021 ◽  
Vol 15 (2) ◽  
pp. 58-72
Author(s):  
Iurii S. Povarov
Keyword(s):  
Main Attention ◽  
Dialectical Logic ◽  
Legal Norms ◽  
Methodological Basis ◽  
Legal Provisions ◽  
Special Scientific ◽  
Special Rules ◽  
Legal Forms ◽  
The Impact ◽  
Individual Regulation

The work catalogs and studies in detail (including in a comparative legal section) various legal forms of the creditor's approval of the transfer of debt by virtue of the transaction and on the grounds provided for by law. The main attention, first of all, is paid to debatable issues regarding the ratio of centralized and individual regulation of the relevant relations, the variety of ways to agree on the transfer of debt (models consent is a unilateral transaction, consent as a condition of the contract, etc.), the nature of the impact of (not) giving permission by the creditor on the fate of an agreement on the transfer of debt obligations concluded without his participation, comparison of the modes of preliminary and subsequent approval. The methodological basis of the research was formed by general theoretical (formal and dialectical logic) and special scientific (legal-dogmatic, interpretation of legal norms, legal modeling, comparative legal) methods. As a result, the author substantiates the feasibility of adjusting the legal provisions in the direction of a clear pairing of general instructions on consent to a transaction and special rules on consent to the transfer of debt, as well as in order to eliminate uncertainty about the actual moments of obtaining an approving creditor's will (subject of agreement, the essence of the nullity of the transfer of debt, admissibility the use of constructions of impersonal previously given and subsequent consent, etc.).

Zur Frage der doktrinellen Auslegung des Artikels 61 Pkt. 3 der Verfassung der Republik Kasachstan

2021 ◽  
Vol 67 (2) ◽  
pp. 133-144
Author(s):  
Ermek B. Abdrasulov
Keyword(s):  
Public Relations ◽  
Social Relations ◽  
Legal Regulation ◽  
Legislative Process ◽  
Legal Norms ◽  
The Law ◽  
The Republic ◽  
Definition Of ◽  
The Relationship ◽  
National Business

This article examines the issues of differentiation of legislative and subordinate regulation of public relations. It is noted that in the process of law-making activities, including the legislative process, practical questions often arise about the competence of various state bodies to establish various legal norms and rules. These issues are related to the need to establish a clear legal meaning of the constitutional norms devoted to the definition of the subject of regulation of laws. In particular, there is a need to clarify the provisions of paragraph 3 of Article 61 of the Constitution of the Republic of Kazakhstan in terms of the concepts "the most important public relations", "all other relations", "subsidiary legislation", as well as to establish the relationship between these concepts. Interpretation is also required by the provisions of p. 4 of Article 61 of the Constitution in terms of clarifying the question of whether the conclusion follows from mentioned provisions that all possible social relations in the Republic of Kazakhstan are subject to legal regulation, including those that are subject to other social and technical regulators (morality, national, business and professional traditions and customs, religion, standards, technical regulations, etc.). Answering the questions raised, the author emphasizes that the law and bylaws, as a rule, constitute a single system of legislation, performing the functions of primary and secondary acts. However, the secondary nature of subsidiary legislation does not mean that they regulate "unimportant" public relations. The law is essentially aimed at regulating all important social relations.

scholarly journals Administrative Law Aspects of Bringing Employees of Prosecution Authorities to Disciplinary Liability

2020 ◽  
Vol 12 ◽  
pp. 59-61
Author(s):  
Vladilen V. Strelnikov ◽  
Keyword(s):  
Law Enforcement ◽  
Public Service ◽  
Administrative Law ◽  
Practical Implementation ◽  
Scientific Article ◽  
Legal Analysis ◽  
Law Enforcement Agencies ◽  
Legal Norms ◽  
The Public ◽  
Legal Documents

The scientific article analyses issues related to the practical implementation of legal norms governing the procedure for disciplinary liability of prosecutors. A theoretical analysis of the interpretations of disciplinary responsibility in the public service formulated by leading legal scholars was carried out. A comparative legal analysis has been carried out of the regulations governing the procedure for the imposition of disciplinary penalties in State bodies, including law enforcement agencies and the legal documents governing these issues in the prosecutor’s office.

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

scholarly journals Tax Sanctions as the Institutions Conditioning Efficiency of Collecting Tax Information – Limits of Legal Regulations

2020 ◽  
Vol 29 (4) ◽  
pp. 189
Author(s):  
Paweł Majka
Keyword(s):  
International Law ◽  
Degree Of Saturation ◽  
Tax Law ◽  
Legal Regulations ◽  
Legal Norms ◽  
The Subject ◽  
The Law ◽  
Principle Of Proportionality

<p>The subject of the study is to outline the boundaries within the legislator may sanction the obligations to provide information to tax authorities using tax sanctions. The author analyzes tax sanctions as instruments guaranteeing the effectiveness of legal norms related to information obligations in the light of the protection of the taxpayer’s rights. In the author’s opinion, there is a clear outline of the possible shape of the sanction, which limits the legislator in excessive interference with the rights of taxpayers. These limits, both in national and international law, are determined primarily by the principle of proportionality, which is decisive for the degree of discomfort associated with the application of sanctions. It should be indicated that the shape limits of these sanctions, characterized in this study, guarantee, in turn, the protection of the rights of these entities. At the same time, it should be emphasized that tax sanctions are, in principle, a complementary element of the system of the guarantees of the law effectiveness and the legislator deciding on their wider use should properly balance the degree of “saturation” of tax law with sanctions taking into account its nature.</p>

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