scholarly journals Variety of theoretical approaches to legal interpretation

2021 ◽  
pp. 109-114
Author(s):  
A. Yе. Shevchenko ◽  
S. V. Kudin
Keyword(s):  
Social Relations ◽  
Theoretical Approach ◽  
Special Kind ◽  
Integrative Approach ◽  
Legal Interpretation ◽  
True Nature ◽  
Theoretical Approaches ◽  
The Will ◽  
The Subject ◽  
The Law

The article explores the variety of theoretical approaches to legal interpretation. It has been determined that the variety of approaches to legal interpretation is due to the complexity of the nature of the origin of this phenomenon, the conditions for the development of post-non-classical science, and the recent influence of the paradigm of comparism, which assumes pluralism of opinions and ideas in legal research. It was found that in modern science there are four traditional theoretical approaches to the essence of legal interpretation. It has been determined that the content of the first approach is revealed within the framework of legal hermeneutics through a number of categories. The essence of the second approach (formal dogmatic or static) is expressed in the fact that the subject of interpretation must strictly and rigorously follow the letter of the law, establish only the meaning of the normative legal act, which the lawmaking body enshrined in it at the time of the publication of the act. That is why normative legal acts cannot, through interpretation, adapt to the changing economic, social, political, cultural internal and external conditions of public life. It is proved that the essence of the dynamic theoretical approach lies in the fact that the subject of legal interpretation adapts the normative legal act to the changes that occur in various social relations. It was found that there is a contradiction between the dynamic and static approaches in legal interpretation, which is reflected in the traditionally called objective and subjective theories of interpretation. According to the subjective theory, the purpose of legal interpretation is to establish the «will of the legislator», and according to the objective theory – to establish the «will of the law». It has been substantiated that the essence of the activity approach is that interpretation is considered as a special kind of legal activity aimed at understanding and clarifying the content of legal texts. The authors of this article point out that in order to establish the true nature of legal interpretation, the methodological foundations of the study should be presented much broader and more diverse, and not be limited only to traditional approaches. When studying it, a comprehensive, integrative approach is needed, which, based on the relevance of interdisciplinary relationships, would include logical, language (linguistic), philosophical, sociological, psychological, axiological (value), ethical, legal, historical, economic, political, mathematical and other substantiation of legal interpretation. Keywords: diversity, theoretical approach, legal interpretation, interpretive practice, integrative approach

Without the Power to Drink or Contract

2020 ◽  
Vol 24 (1) ◽  
pp. 26-48
Author(s):  
Warren Swain
Keyword(s):  
Alcohol Consumption ◽  
Social Activity ◽  
Individual Responsibility ◽  
Roman Law ◽  
Current Position ◽  
Modern Times ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Over Time

Intoxication as a ground to set aside a contract is not something that has proved to be easy for the law to regulate. This is perhaps not very surprising. Intoxication is a temporary condition of varying degrees of magnitude. Its presence does however raise questions of contractual autonomy and individual responsibility. Alcohol consumption is a common social activity and perceptions of intoxication and especially alcoholism have changed over time. Roman law is surprisingly quiet on the subject. In modern times the rules about intoxicated contracting in Scottish and English law is very similar. Rather more interestingly the law in these two jurisdictions has reached the current position in slightly different ways. This history can be traced through English Equity, the works of the Scottish Institutional writers, the rise of the Will Theory, and all leavened with a dose of judicial pragmatism.

scholarly journals FUNCTIONAL BASIS OF ACTIVITIES OF SUBJECTS SOCIAL SECURITY

2020 ◽  
Vol 1 (4(106)) ◽  
pp. 238-242
Author(s):  
А. І. Дерев’янко
Keyword(s):  
Social Security ◽  
Public Relations ◽  
Social Relations ◽  
Public Safety ◽  
Legal Status ◽  
Theoretical Approaches ◽  
Strict Compliance ◽  
The Law ◽  
Compliance With The Law ◽  
Law Making

The purpose of the article is to determine the system of functioning of social security entities on the basis of doctrinal approaches. The article analyzes the theoretical approaches to understanding the functions of subjects in the field of public safety. Generalizations are made, the corresponding classification of key functions is carried out. It is established that the functions of subjects in the field of social security should be divided into: 1) main or basic functions - ie material, which determine the object of public safety, ie social relations in a particular area of human activity and determine ways to influence them; 2) secondary or derivatives, which include those that are determined by the very legal status of a subject in the field of public safety. It is concluded that the law-making function means the issuance of regulations of various legal nature to establish formal rules and procedures for ensuring public safety in a particular sector of the economy. These acts are binding acts, the content of which is to comply with safety rules in these areas and differs on the basis of the peculiarities of application and the actual signs of influence on the state of public relations. The law-making function is expressed in ensuring public safety, through the issuance of acts, based on monitoring and coordination in this area. The operational and executive function is to ensure public safety by means of exercising powers in the field of sectoral public security. This function is formed due to two activities to ensure public safety. The operational component is defined as responding to various types of threats and dangers of public safety. Executive, in turn, means strict compliance with the law on public safety, which is the responsibility of the relevant public safety entity.

scholarly journals Theoretical approaches towards the steps of nongovernmental actors in world politics: global paradiplomacy of the Iraqi Kurdistan (KRI).

2021 ◽  
pp. 31-41
Author(s):  
Dalsooz Jalal Hussein
Keyword(s):  
International Relations ◽  
Theoretical Approach ◽  
International Politics ◽  
World Politics ◽  
Political Actors ◽  
Theoretical Approaches ◽  
Iraqi Kurdistan ◽  
State Actor ◽  
The Subject ◽  
State Actors

This article presents a theoretical approach towards the global political steps of non-state actors. Particular attention is given to a number of theories of international relations, such as neorealism, international liberalism, and constructivism, which are able to encompass current global actions of non-state political actors. For a clearer perspective on the subject matter, the article employs the example of Iraqi Kurdistan (KRI); as a non-state actor, KRI has recently become a vivid example for the theories of international relations. The conclusion is made that security, economy, culture, religion and identity are the key and post powerful instruments of non-state actors of international politics. The example of KRI demonstrates that international relations of non-state actors focus on security, economy and culture, as well as serve as the instruments of interaction with both, state and non-state actors. The article reviews such activity within the framework of neorealism, international liberalism, and constructivism. It is underlines that the example of Iraqi Kurdistan (KRI) fully meets all the criteria of a non-state actor of international politics. It is also a brilliant example for the theories of international relations.

scholarly journals FORMALISM IN ROMAN CONTRACT LAW

2019 ◽  
Vol 34 (5) ◽  
pp. 1457-1463
Author(s):  
Shpresa Alimi-Memedi
Keyword(s):  
Developmental Stages ◽  
Essential Element ◽  
Contract Law ◽  
Roman Law ◽  
Legal Principles ◽  
Stage Of Development ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Accepted Form

The certain mode of production conditions certain legal expressions, determines the character and the forms of expression of the law, and depending on this, certain legal institutes and legal principles arise and change. The principle of formalism in a certain period of development of contractual relations is nothing but an expression of certain socioeconomic and other conditions present in that period. The subject of this paper is the principle of formalism as a feature of Roman contract law, the emergent forms of formalism in Roman law, the causes and functions of formalism in certain stage of development of Roman law. The influence of religion on the law and the low level of development of socioeconomic relations were the main reasons for the recognition of formalism in the first legal systems.The principle of formalism implies that the form of the contract as a means of expressing the consent of the will of the parties is a legally established imperative. The specific way of expressing the will to conclude a contract is an essential element of the contract. Infringement of the form is sanctioned by the nullity of the agreement.Formalism in Roman contract law is present and dominant in the period of the early Roman state and law, the late Roman Republic and pre-classical Roman law. The principle of formalism in these developmental stages of the Roman state and law does not mean that it excludes completely the opposite principle of consensualism which implies that contracts are created by a mere consent of the will of the contracting parties, which can be expressed in words or in writing, or with other behavior from which its existence can certainly be concluded. In Roman law, the consensual form has never succeeded in becoming a generally accepted form and Roman law has never formulated the general principle of consensuality.

Beyond the Society of Judgement: Deleuze and the Social Transitivity of Affects

2019 ◽  
Vol 13 (4) ◽  
pp. 541-551
Author(s):  
Claudia Landolfi
Keyword(s):  
Social Relations ◽  
Legal Subject ◽  
Main Form ◽  
The Social ◽  
The Subject ◽  
The Law ◽  
Legal Normativity

Legal apparatus looks like a set of norms which rely on a rational project of life, yet it is possible, following Deleuze but also Hume and Kafka, to recognise the irrational aspect of this system. Is the law a dream? In what relation is the law with the subject? If the legal subject acts in a dream, what are the results? This paper develops around such questions with the aim of critically reflecting on the foundations of subjectivity and its connections with the legal normativity that requires obedience as the main form of respect and adherence. In this apparently free and creative present, which is unfolded on a digital codex of information, it seems relevant to be highly suspicious of the barriers that are going to be tightened more and more around thought and its potential creative evolutions. Can we think of – beyond the legal/illegal, obedient/disobedient dichotomy – a system of social relations that, instead of giving space to the permanent and repetitive features of subjects, discovers a wider margin of affective, innovative and creative connections in response to the behavioral exemplifications of diktats?

scholarly journals Heidegger and Lacan

2020 ◽  
Vol 9 (2) ◽  
pp. 4-12
Author(s):  
Dario Alparone ◽  
Valentina Lucia La Rosa
Keyword(s):  
Social Relations ◽  
Philosophy Of Language ◽  
Continental Philosophy ◽  
Human Beings ◽  
Lacanian Psychoanalysis ◽  
Social Link ◽  
Human World ◽  
The Subject ◽  
The Law ◽  
The Relationship

Lacanian psychoanalysis cannot disregard its debts to philosophy, especially continental philosophy. Lacan’s conception of language is derived from multiple philosophical sources (i.e., Plato, Aristotle, Kant, Hegel, Kierkegaard) including Heidegger’s philosophy of language and pride of place. Heidegger’s view of language prepares the ground for reversing the relationship between language and human beings, overcoming common sense about language and the communicative model of language. Language is much more than a set of labels; it shapes the human world and structures social relations themselves. In addition, language acts as a social link. The function of language as a social link allows us to think of it in relation to the Law and the very function of this human subjectivity. In reference to the Other of the Law and language, the subject finds her recognition, and this implies that the language is not reducible to communication. The process of technical-scientific domination of Western institutions leads to a reduction of their functions to the formal aspects, which may lead to a reification of the human as well as a state of alienation.

scholarly journals Theoretical approaches towards the steps of non-state actors in world politics: global para-diplomacy of the Iraqi Kurdistan (KRI)

2021 ◽  
pp. 23-33
Author(s):  
Dalsooz Jalal Hussein
Keyword(s):  
International Relations ◽  
Theoretical Approach ◽  
International Politics ◽  
World Politics ◽  
Political Actors ◽  
Theoretical Approaches ◽  
Iraqi Kurdistan ◽  
State Actor ◽  
The Subject ◽  
State Actors

  This article presents a theoretical approach towards the global political steps of non-state actors. Particular attention is given to a number of theories of international relations, such as neorealism, international liberalism, and constructivism, which are able to encompass current global actions of non-state political actors. For a clearer perspective on the subject matter, the article employs the example of Iraqi Kurdistan (KRI); as a non-state actor, KRI has recently become a vivid example for the theories of international relations. The conclusion is made that security, economy, culture, religion and identity are the key and post powerful instruments of non-state actors of international politics. The example of KRI demonstrates that international relations of non-state actors focus on security, economy and culture, as well as serve as the instruments of interaction with both, state and non-state actors. The article reviews such activity within the framework of neorealism, international liberalism, and constructivism. It is underlines that the example of Iraqi Kurdistan (KRI) fully meets all the criteria of a non-state actor of international politics. It is also a brilliant example for the theories of international relations.  

scholarly journals CURRENT ISSUES IN SUCCESSION LAW

2017 ◽  
Vol 29 (1) ◽  
pp. 143-148
Author(s):  
Judith Bray
Keyword(s):  
House Prices ◽  
Practical Importance ◽  
Ageing Population ◽  
The Will ◽  
The Subject ◽  
The Law ◽  
Informal Carers ◽  
Law Of Succession ◽  
Conference Papers ◽  
Court Of Appeal

As the editors observe at the start of this book, the law on succession is a “neglected field”in England whilst Continental and comparative lawyers have rediscovered it to be of immense practical importance which deserves greater academic attention. The rules of succession are of great significance to all; as pointed out by Penelope Reed in Chapter Seven there is no shortage of probate disputes that end up in the Chancery Division as a result of “… an ageing population, the increase in the incidence of dementia and the rise of house prices making estates worth fighting over…”  Since death is inevitable and everyone will die either testate, having made a valid will or intestate, without a valid will the law of succession affects us all. In order to address this gap in the law a conference took place in July 2015 at All Souls College Oxford attended by Chancery Judges, a member of the Court of Appeal as well as a number of leading academics and practitioners. This book comprises eleven of the conference papers. The result is an excellent book both as a reference work for students and practitioners and also of interest to the wider public who may be drawn in by the subject matter and possibly the picture on the loose leaf cover showing David Wilkie’s well-known painting Reading of the Will. In many ways the most engaging feature of this collection is the breadth of subjects covered. They range from the more traditional succession issues such as the reform of the rules of intestacy in Chapter One and Mutual Wills in Chapter Five to the more challenging issues of Testamentary dispositions in favour of informal carers in Chapter Eight and Proprietary Estoppel in Chapter Four. Much credit should be given to the conference organisers and book editors for ensuring that the conference and later the book had sufficient breadth and did not dwell overly on the minutiae of the rules of drawing up a valid will although that said Chapter Four shows how this in itself embraces many wider legal issues.

scholarly journals Theoretical approaches to the definition of the subject of administrative law and process

2021 ◽  
Vol 2 (12) ◽  
pp. 138-149
Author(s):  
R. V. NAGORNYKH ◽  
Keyword(s):  
Public Relations ◽  
Public Administration ◽  
Social Relations ◽  
Administrative Law ◽  
Cultural Development ◽  
Public Power ◽  
Theoretical Approaches ◽  
The Subject ◽  
Definition Of ◽  
The Individual

The article substantiates the conclusions that the subject of modern administrative law and process in Russia is a complex multifaceted legal phenomenon that includes various social relations. The basis of the constitutional model of the subject of modern administrative law and process is public relations in the field of protecting the rights and freedoms of the individual by limiting discretion and arbitrariness in public administration, the development of institutions of judicial and public control over the activities of public administration as well as various public relations regarding the formation of the architecture of public power, direct implementation of administrative law enforcement activities in the field of public administration, the creation and direct participation of domestic subjects of public administration in the activities of international organizations endowed with administrative powers in the field of interstate interaction and coordination, supranational administrative regulation, control in the field of protecting national and global interests in ensuring security, economic and cultural development of various states and peoples

scholarly journals Jurisdiction without conflict? Remarks on non-adverse proceedings in Italy

2017 ◽  
Vol 1 (3) ◽  
pp. 143-149
Author(s):  
Elisabetta Silvestri
Keyword(s):  
Justice System ◽  
Civil Procedure ◽  
Roman Law ◽  
Legal Interpretation ◽  
Scientific Methods ◽  
General Scientific ◽  
The Subject ◽  
The Law ◽  
Default Rules ◽  
Near Future

The subject. This essay describes the procedural treatment of non-contentious matters inItaly. After a brief historical recount on the evolution of the concept of ‘non-contentiousjurisdiction’, from Roman law to the law in force, the chapter emphasizes the extreme varietyof non-adverse proceedings governed by the Code of civil procedure and special statutesas well.The purpose of the article is to understand the ‘default rules’ of non-adverse proceedings(meaning the rules applicable insofar as the law does not ordain otherwise) provided by theCode of civil procedure. These rules outline a procedure in chambers that is simpler andless time-consuming than the ordinary one: for these reasons, the procedure in chambershas been increasingly adopted for the judicial treatment of a few contentious matters, withmixed results.Methodology. The methodological basis for the study: general scientific methods (analysis,synthesis, comparison, description); private and academic (comparative legal, interpretation,formal-legal).Results. It is difficult to foresee whether in the near future more attention will be devotedby Italian legislators to non-contentious jurisdiction so as to lay down rules that are uniformand consistent. In recent decades, Italian civil procedure has been re-written again andagain in the attempt to solve the most serious and enduring problem of the justice system,namely, the excessive length of proceedings.Conclusions. As far as non-contentious matters, in light of the notorious overload of Italiancourts the author believes that they could be handles more efficiently by administrativeauthorities.

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