scholarly journals Formalism and realism as a style of judicial interpretation: theoretical-applicable aspect

2020 ◽  
Vol 11 (11) ◽  
pp. 117-121
Author(s):  
Kopytova O.
Keyword(s):  
Social Relations ◽  
Judicial Discretion ◽  
Judicial Interpretation ◽  
Morality Policy ◽  
Written Text ◽  
Realistic Approach ◽  
Course Of Action ◽  
Incorrect Conclusion ◽  
The Law ◽  
Theory Of Law

The article is devoted to revealing the features of formalism and realism as styles of judicial interpretation. It is proved that the effective and enforceability of the law as a whole depends on the effective enforcement. Judicial enforcement is the last stage of enforcement as a whole. The court, through judicial enforcement, reveals the content of a rule of law in its course of action, completes it or establishes its true meaning through interpretation. It is argued that the use of formalism and realism as styles of judicial interpretation leads to the formation of two independent styles of justice. It is stated that, in the practical plane, the distinction between formalism and realism looks so that the judge should start from the written text of the act, applying the priority of the principle of legality. The will of the "author of the text" is also taken into account. Formalism, given the rapid nature of social relations and therefore the change in legal reality, is generally associated with the risk of making unfair judgments. Judicial realism, on the contrary, considers it possible for judges to appeal to considerations of morality, policy and the like. It is proved that a realistic approach is necessarily linked with voluntarism that exists in "hard" and "soft" forms. This gives you the opportunity to be a realistic approach, radical or moderate. If the judge is empowered to set the contents (meaning) of the text that is interpreted, it is absolutely arbitrary – arbitrary, that is, without any connection with the semantics of the text, then voluntarism is evident in "hard" form. Judicial realism is able to use strong arguments, and is therefore able to meet the requirements of justice and (or) the effective court decisions in the socio-economic and political circumstances change rapidly. Popular here is the application context of the application of the law. These approaches in the theory of law also called static and dynamic (one that fits right to life) ways of interpretation. At the same time, we must not forget about the possibility of a miscarriage of justice during the administration of justice. It is a properly defined legally significant circumstances in connection with this incorrect conclusion of the court made on the basis of given factual circumstances. A realistic approach is necessarily linked with voluntarism that exists in "hard" and "soft" forms. This gives you the opportunity to be a realistic approach, radical or moderate. If the judge is empowered to set the contents (meaning) of the text that is interpreted, it is absolutely arbitrary – arbitrary, that is, without any connection with the semantics of the text, then voluntarism is evident in "hard" form. Example of rigid forms of realism may be the use of judicial discretion when the court and not the legislator is actually created a new rule of conduct. Key words: judicial interpretation, judicial enforcement, formalism, realism, styles judicial interpretation, voluntarism.

Legal Liability for Land Offences

10.12737/6590 ◽  
2014 ◽  
Vol 2 (12) ◽  
pp. 0-0
Author(s):  
Елена Болтанова ◽  
Elena Boltanova
Keyword(s):  
Social Relations ◽  
Social Impact ◽  
Forced Termination ◽  
Land Law ◽  
Legal Cases ◽  
Legal Norms ◽  
Analysis And Synthesis ◽  
The Law ◽  
Theory Of Law ◽  
The Right

Though the term «infringement of the land law» is quite broadly used both in the practical legislation and in the theory of law, the definition of the term is quite disputable. The same is true regarding the types of responsibility that the infringement can generate. The article is aimed at defining the term and the notion of the infringement of the land law and at the substantiating of the various types of responsibility for the infringement. Acting norms of law of Russia, practical legal cases, scientific, academic and other publications constitute the empiric data for the research. The method of the research in its broader sense is based on the materialist dialectic, which makes it possible to consider the facts and processes in their interrelation and development. Besides, the methods of formal logics, of normative dogmatics, of analysis and synthesis and others were used during the research. The article proves that the type of responsibility, be it criminal, administrative, disciplinary, property liability, depends on the social impact and danger, on the functions of responsibility, and, to certain extent, on the practical thought. This is viewed from the position of interrelated and objectively connected legal norms maintaining law, which, in its turn, determines the sanction be separate from the hypothesis and from the disposition of legal norm. The law of Russia determines such a sanction as the forced termination of the right for the spot of land due to its misuse. The sanction is strictly personified and restrictive. The article stipulates grounds for the usage of the sanction as a measure of special responsibility in the sphere of land law. The responsibility is objectively conditioned by the specificity of land social relations and by infringements of the land law in particular. The research concluded that the infringement of the land law is an integral notion, characterized by the action deviating from those required by the law, and breaking the land laws. The land law is enforced by a system of measures of various types of responsibility, whereas the legislation regulating the responsibility has certain completeness and systemic integrity.

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.

scholarly journals A Major Misunderstanding of Minors' Contracts? Enforcement and Restitution Under the Minors' Contracts Act 1969

2009 ◽  
Vol 40 (4) ◽  
pp. 721
Author(s):  
James Gilbert
Keyword(s):  
Credit Union ◽  
Judicial Discretion ◽  
Judicial Interpretation ◽  
The Law

The Minors Contracts Act 1969 divides minors' contracts into two categories – those which are presumptively enforceable against the minor in the absence of unconscionability or oppression, and those which are presumptively unenforceable with an allowance for the exercise of judicial discretion to order remedies of enforcement, compensation or restitution depending on the fairness and reasonableness of the contract. This article focuses on judicial interpretation and application of the law with respect to the latter category, particularly in the case of Wine Country Credit Union v Rayner. It argues that the decision in Rayner to deny the possibility of a restitutionary or compensatory order in favour of the plaintiff lender was incorrect and contrary to parliamentary intention, and that reform of the law relating to minors' contracts is necessary to avoid a repeat of those errors.

scholarly journals Limits of Autonomy in Criminal Law

Lex Russica ◽  
2019 ◽  
pp. 117-128
Author(s):  
V. V. Khilyuta
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Social Relations ◽  
Criminal Law ◽  
Regulatory Function ◽  
Judicial Interpretation ◽  
Economic Relations ◽  
The Law ◽  
The Right ◽  
Law Regulation

The article raises a question about the autonomy of criminal law. Various aspects of the doctrinal understanding of the limits of criminal law and its scope in relation to the positive branches of legislation are considered. The author in the context of the existence of the concept of autonomy (independence) of criminal law regulation questions the limits of judicial interpretation. In this context, antagonistic views on the limits of the mechanism of criminal law regulation are considered. Particular attention is given to the fundamental premise that the functional autonomy of criminal law generates not only a protective component, but also a regulatory function, and the law enforcement officer has the right to decide a particular case, based on concepts borrowed from other branches of law, but it can give them a different meaning and significance than the one they are endowed with in these positive (regulating specific social relations) sectors. The author comes to the conclusion that an autonomous interpretation of foreign industry features and concepts of regulatory legislation is scarcely credible. If a criminal law is to protect economic relations arising from the static and dynamic nature of objects of civil rights and their turnover from criminal encroachments, its subordination to the provisions of regulatory legislation is inevitable. The determinism here should be manifested precisely in accordance with the description of the signs of the crime to the provisions of regulatory norms. As a result, the autonomy of criminal law may create uncertainty about the content of the rule of law itself and allow for unlimited discretion in its enforcement. In this formulation of the issue, the autonomy of criminal law regulation is replaced by a very different approach — the autonomy of the judicial interpretation of criminal law. However, in this case there is a substitution of concepts, and the autonomy of criminal law is associated not so much with the regulatory function as with the law enforcement of criminal law.

scholarly journals THE LAW AS A SOURCE OF LAW OF MODERN LEGAL RUSSIAN STATE

2019 ◽  
Vol 29 (6) ◽  
pp. 911-916
Author(s):  
N.G. Yakusheva
Keyword(s):  
Social Relations ◽  
Point Of View ◽  
Modern Development ◽  
Democratic State ◽  
Federal Constitutional ◽  
The Law ◽  
Theory Of Law ◽  
Many Sources ◽  
Law Making

Among the many sources of modern law, the author considers the law as the main source of law for most modern states. The nature of this source of law in modern Russia is investigated, its main features are highlighted. A specific feature of the modern development of Russian legislation is noted - the adoption of laws is aimed at transformations, reforms, and the introduction of new legal decisions. A comparative description of legislation and law is presented. It is concluded that the legislation is characterized by systemic properties derived from the quality and dynamics of social relations, their values and priorities. An assessment of different views of scientists on the problem under study is given from the point of view of the historical stages of society development. The necessity of observing the principle of the hierarchy of sources of law (the Constitution - the Federal Constitutional Law - the law - the decree, etc.) in the framework of a legal democratic state is emphasized. Priorities are identified in relation to the direction and purpose of legal reform in modern Russia, ensuring the supremacy of citizens' interests over the interests of the power system. Due to the low quality of laws adopted in the Russian Federation, it is concluded that it is necessary to provide scientific and methodological assistance to legislative bodies to improve the quality of laws. Measures to improve existing legislation are proposed. Conclusions are drawn about the need to develop a unified theory of law-making and law-enforcement mistakes and to take into account the objective needs of public life in the subjective law-making activity of the legislator.

Judicial Interpretation of the Law

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Павел Гук ◽  
Pavel Guk
Keyword(s):  
Law Enforcement ◽  
Social Relations ◽  
Judicial Interpretation ◽  
Practical Research ◽  
The Law ◽  
Enforcement Authority

The article deals with the interpretation of the law by the judiciary. Normative legal acts in the process of their application can not always regulate social relations, resulting in the uncertainty of their application. Judicial interpretation of the law by the highest judicial authorities provides necessary assistance to the law enforcement authority having, which gives certainty and unity of their application to specific legal disputes. Judicial interpretation in the enforcement process remains valid at the present time that requires the theoretical and practical research. Theory of judicial interpretation of the law will tend to develop skills to understand the specifics of formation and application of acts of judicial interpretation.

On the Artifactual—and Natural— Character of Legal Institutions

2018 ◽  
Author(s):  
Corrado Roversi
Keyword(s):  
Natural Law ◽  
Common Ground ◽  
Legal Positivism ◽  
Legal Institutions ◽  
Human Beings ◽  
Legal Realism ◽  
Natural Law Theory ◽  
The Law ◽  
Theory Of Law

Are legal institutions artifacts? If artifacts are conceived as entities whose existence depends on human beings, then yes, legal institutions are, of course, artifacts. But an artifact theory of law makes a stronger claim, namely, that there is actually an explanatory gain to be had by investigating legal institutions as artifacts, or through the features of ordinary artifacts. This is the proposition explored in this chapter: that while this understanding of legal institutions makes it possible to find common ground between legal positivism and legal realism, it does not capture all of the insights offered by these two traditions. An artifact theory of law can therefore be necessary in explaining the law, but it will not suffice to that end. This chapter also posits that legal artifacts bear a relevant connection to certain conceptions of nature, thus vindicating one of the original insights behind natural law theory.

Admissibility of confession evidence: Principles of hearsay and the rule of voluntariness

2021 ◽  
pp. 136571272110022
Author(s):  
Jennifer Porter
Keyword(s):  
Western Australia ◽  
Common Law ◽  
South Australia ◽  
Judicial Discretion ◽  
Trial Judge ◽  
Important Policy ◽  
Oral Testimony ◽  
The Common ◽  
The Law ◽  
Confession Evidence

The common law test of voluntariness has come to be associated with important policy rationales including the privilege against self-incrimination. However, when the test originated more than a century ago, it was a test concerned specifically with the truthfulness of confession evidence; which evidence was at that time adduced in the form of indirect oral testimony, that is, as hearsay. Given that, a century later, confession evidence is now mostly adduced in the form of an audiovisual recording that can be observed directly by the trial judge, rather than as indirect oral testimony, there may be capacity for a different emphasis regarding the question of admissibility. This article considers the law currently operating in Western Australia, Queensland and South Australia to see whether or not, in the form of an audiovisual recording, the exercise of judicial discretion as to the question of the admissibility of confession evidence might be supported if the common law test of voluntariness was not a strict test of exclusion.

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.

The Persistence of Formalism: Towards a Situated Critique beyond the Classic Separation of Powers

2010 ◽  
Vol 3 (2) ◽  
Author(s):  
Jose R. Rodriguez
Keyword(s):  
Social Relations ◽  
Social Practice ◽  
Legal Theory ◽  
Separation Of Powers ◽  
Academic Research ◽  
The Social ◽  
Critical Legal Theory ◽  
Theory Of Law ◽  
General Method

Formalism persists everywhere despite 100 years of critical legal theory. The reasons for that are sociological and political and include the persistence of the separation of powers idea as a central concept for the theory of law. In Brazil, this phenomenon manifests itself acutely for two supplementary reasons: (1) the lack of a real differentiation between academic research and professional lawyering and (2) the influence of neo-liberal economic thought.The persistence of formalism is a serious problem for Brazilian development since it naturalizes the existing institutions and their related power positions, creating an obstacle to any project of development that proposes something new. It blocks the development of a critical and reflexive knowledge on institutions, shortening institutional imagination to projects that could transform Brazilian reality.The main objective of this article is to develop a critique of formalism useful both as a general method to criticize formalism and as a tool to criticize its Brazilian manifestation. It will be argued here that the critique of formalism fails when it is only theoretical. An efficient critique must also grasp the ideas and the social relations responsible to reproduce formalism as a conceptual idea that informs social practices.To do that, this article will first propose a characterization of Brazilian formalism that does not fit in the Formalism X Instrumentalism dichotomy and is more adequate to grasp how law rationality works in countries from the Continental Law tradition. Afterwards, it will identify the power positions and the respective ideologies responsible to reproduce formalism in Brazil, giving criticism a sociological basis. Finally, it will show that only a positive view of what law should be will able to overcome formalism, both as a philosophical idea and as a social practice. In its final part, a sketch of such a view will be presented.

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