scholarly journals Problem issues of interpretation of doctrinal errors

2021 ◽  
pp. 19-24
Author(s):  
N. M. Onishchenko
Keyword(s):  
Effective Means ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Practical Application ◽  
Regulatory Issues ◽  
Practical Advice ◽  
Legal Norms ◽  
Independent Evaluation ◽  
Bona Fide ◽  
Precautionary Measures

An interesting and little-studied issue of modern domestic doctrine is the issue of legal errors, in particular the relevantproblems of interpretation of law. After all, the analysis of their essence, nature and ways of prevention is one of the most important issues of improving legal practice in general and increasing the effectiveness of legislation in particular. In this scientific research the task of studying the problem of doctrinal interpretation of law is set. It is safe to say thatin general this topic is considered studied, discussed and systematized. Moreover, at the doctrinal level, this is confirmed more and more accurately than in view of its practical application. The research was based on the following: recent problems related to the legal practice of the CCU; related to theconduct of an external independent evaluation or the cancellation of the state final certification; passing exams in schools and colleges - a lot of regulatory issues that are dictated by the new realities of life in a pandemic. The article highlights the types of legal errors, subjective and objective factors of their occurrence. A special vector of consideration is devoted to doctrinal legal errors and ways to prevent and eliminate them in the context of legal interpretation practice. After a definitive list and analysis of research and publications, the author turned to the essence of the issue. Legal error is most often interpreted as a negative result due to unintentional, incorrect actions of legal entities (bona fide error). The value of this work is to obtain practical advice on effective means of combating doctrinal errors. Keywords: interpretation of legal norms, error, legal error, types of legal errors, doctrinal legal error, precautionary measures

Maxims

2019 ◽  
pp. 654-669
Author(s):  
Donald R. Davis
Keyword(s):  
Islamic Law ◽  
Legal Interpretation ◽  
Legal Practice ◽  
Moral Foundation ◽  
Legal Principles ◽  
Legal Traditions ◽  
The World ◽  
The Law

This chapter examines the history and use of maxims in legal traditions from several areas of the world. A comparison of legal maxims in Roman, Hindu, Jewish, and Islamic law shows that maxims function both as a basic tools for legal interpretation and as distillations of substantive legal principles applicable to many cases. Maxims are characterized by their unquestionable character, even though it is often easy to demonstrate contradictions between them. As a result, legal maxims seem linked to the recurrent desire for law to have a moral foundation. Although maxims have lost their purchase in most contemporary jurisprudence and legal practice, categories such as “canons of construction,” “legal principles,” and “super precedents” all show similarities to the brief and limited collections of maxims in older legal traditions. The search for core ideas underlying the law thus continues under different names.

scholarly journals MEMBANGUN MORALITAS DAN HUKUM SEBAGAI INTEGRATIVE MECHANISM DI MASYARAKAT DALAM PERSPEKTIF HUKUM PROGRESIF

2021 ◽  
Vol 14 (2) ◽  
Author(s):  
Adam Ilyas ◽  
Dicky Eko Prasetio ◽  
Felix Ferdin Bakker
Keyword(s):  
Rule Of Law ◽  
Legal Practice ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Law And Morality ◽  
The Law

Abstract This study aims to analyze the application of morality to legal practice in Indonesia. This is because the reality of the rule of law today is dominated by a positivist-legalistic phenomenon that prioritizes text but darkens morality's meaning in law. Morality in law seems to be immersed in legal practice that deifies the textual law but neglects the law's moral essence. This research is juridical-normative research oriented towards coherence between the principles of law based on morality and legal norms and legal practice in society. This research's novelty is the development of morality in the rule of law practice by prioritizing two aspects, namely the integrative mechanism aspect of Harry C. Bredemeier with the progressive law of Satjipto Rahardjo. This study emphasizes that efforts to develop law must not forget the elements of morality development. This study's conclusions highlight that the development of law and morality will run optimally by upholding the law as an integrative mechanism and applying progressive law as a solution in facing the lethargy of the Indonesian nation.Keywords: integrative mechanism; morality; progressive lawAbstrak Penelitian ini bertujuan untuk menganalisis penerapan moralitas pada praktik berhukum di Indonesia. Hal ini dikarenakan bahwa realitas praktik berhukum saat ini didominasi oleh fenomena positivistik-legalistik yang mengutamakan teks tetapi menggelapkan makna moralitas dalam berhukum. Aspek moralitas dalam hukum seakan tenggelam dalam praktik hukum yang mendewakan tekstual undang-undang tetapi melalaikan esensi moral dalam undang-undang. Penelitian ini merupakan penelitian yuridis-normatif yang berorientasi pada koherensi antara asas-asas hukum yang bersumber pada moralitas dengan norma hukum serta praktik hukum di masyarakat. Kebaruan dari penelitian ini yaitu pembangunan moralitas dalam praktik negara hukum dengan mengedepankan dua aspek, yaitu aspek integrative mechanism dari Harry C. Bredemeier dengan hukum progresif dari Satjipto Rahardjo. Hasil dari penelitian ini menegaskan bahwa upaya membangun hukum tidak boleh melupakan aspek pembangunan moralitas. Simpulan dalam penelitian ini menegaskan bahwa, pembangunan hukum dan moralitas akan berjalan secara optimal dengan meneguhkan hukum sebagai integrative mechanism serta menerapkan hukum progresif sebagai solusi dalam menghadapi jagat kelesuan berhukum bangsa Indonesia.

The Influence of Utopian Projects on the Interpretation of International Law and the Healthy Myth of Objectivity

2018 ◽  
Vol 60 (1) ◽  
pp. 515-538
Author(s):  
Severin Meier
Keyword(s):  
World War I ◽  
International Law ◽  
Legal Theory ◽  
Social Darwinism ◽  
Legal Interpretation ◽  
World War ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Critical Legal Theory ◽  
State Consent

Social Darwinism as a utopian project had a decisive influence on the interpretation of the ius ad bellum before World War I. This contribution tries, among others, to draw parallels to the way today’s utopian visions of democracy and the rule of law affect international law. Approaches to legal interpretation influenced by critical legal theory are used to explain how such extra-legal considerations can play a role in the interpretation of international legal norms. Such approaches maintain that international law cannot be objective, i.e. simultaneously based on State consent and on extra-consensual standards. The article further asks how international law should be understood if it cannot be objective. In other words, it discusses the practical consequences if international law has to rely on extra-legal considerations, such as the belief in Social Darwinism or the desire to spread democracy, in order to reach solutions to legal problems. It is argued that upholding the belief in international law’s objectivity is preferable to its alternatives.

1. Ethics, professional conduct, and regulation

2021 ◽  
pp. 3-37
Author(s):  
Clare Firth ◽  
Jennifer Seymour ◽  
Lucy Crompton ◽  
Helen Fox ◽  
Frances Seabridge ◽  
...  
Keyword(s):  
Codes Of Conduct ◽  
Recent Change ◽  
Legal Services ◽  
Professional Conduct ◽  
Legal Practice ◽  
Practical Application ◽  
Standards And Regulations

This chapter begins with a description of how the legal services market has undergone recent change, with the Solicitors Regulation Authority’s (SRA) Principles and Codes of Conduct within the Standards and Regulations replacing the previous outcomes-focused regulation code (OFR Code). It considers what being a member of the profession and a good solicitor means, the Principles, relevant paragraphs of the Codes of Conduct, the Transparency Rules, and the SRA’s Enforcement Strategy currently in force. It explains how the recent changes have widened legal services provision and introduced further flexibility into how solicitors and firms justify their compliance with the regulations. It then looks at the practical application of the principles and paragraphs which are most relevant to readers at this stage of their legal career as a student (covering practical examples relevant to each core legal practice area) and trainee.

scholarly journals Interpretative Norms: The Concept and Legal Nature

Legal Concept ◽  
2021 ◽  
pp. 73-78
Author(s):  
Evgeny Terekhov ◽  
Keyword(s):  
Current System ◽  
Legal Regulation ◽  
Legal Interpretation ◽  
Methodological Framework ◽  
Legal Norms ◽  
Legal Science ◽  
Legal Nature ◽  
The Common ◽  
Russian Law ◽  
System Today

Introduction: a legal interpretation activity is an independent type of legal activity. Despite this, its system today is rather poorly studied, which leads to the contradictions in the formation of interpretative practice. One of the elements of the system of legal interpretation activity is interpretative norms, which in legal science have not been distinguished as an independent legal category and have not been comprehensively studied. Purpose: to establish the truth in the issue of distinguishing interpretative norms as an independent legal category. Methods: the methodological framework for the study is a set of methods of scientific knowledge, including consistency, analysis, comparative legal, formal legal. Results: the author’s position grounded in the work is based on the study of the term “interpretative norms”, as well as their comparative analysis with the norms of law to identify the common and individual features. Conclusions: as a result of the conducted research, it is established that interpretative norms should be considered in the legal science as an independent legal category. This is confirmed by the possibility of distinguishing one’s own concept, as well as the presence of an individual legal nature. The current system of Russian law is an interdependent tandem of legal norms and interpretative norms, which interact with each other, allowing the most optimal way to achieve the goals of the legal regulation.

scholarly journals Impediments to public consultations in the Polish local self-government

2019 ◽  
Vol 3 (1) ◽  
pp. 70-80
Author(s):  
Marcin Pomaranski
Keyword(s):  
Public Administration ◽  
Direct Democracy ◽  
Political System ◽  
Public Consultation ◽  
The Political ◽  
System Transformation ◽  
Practical Application ◽  
Practical Advice ◽  
The Public ◽  
Public Consultations

The aim of this paper is a comparative analysis of legislative solutions and practical application of the public consultations in the Polish local government after 1989. The legal changes that occurred during this period have guaranteed Polish citizens the tool to direct exercising the political power. Unfortunately, the lack of legislative precision in the use of mechanisms of civic participation in Poland is characteristic of public consultation. Despite the fact that this solution has been used by public administration since the political-system transformation and the passing of the Act on Gmina Self-Government of 1990, and that in 1997 the consultations as a form of the exercise of power by the citizens were also established in the Constitution, for the first two decades there was a fairly great freedom of interpretation in holding them, which the local self-government authorities widely used. Positive changes in the practice of using the mechanisms of public consultation in Poland, including the formulation of the widely accepted set of guidelines and practical advice concerning the manner of implementing these mechanisms, began to take place only in the last four to five years. Main thesis of the paper is the opinion that public consultations in the example of the Polish self-government despite nearly three decades of legislative and political experiences are still not an effective tool of direct democracy, but only a bureaucratic facade.

scholarly journals Das Gesetz gegen Doping im Sport in der Praxis – Eine Evaluierung

2021 ◽  
Author(s):  
Elisa Hoven ◽  
Michael Kubiciel
Keyword(s):  
Federal Government ◽  
Case Studies ◽  
Criminal Law ◽  
Legal Practice ◽  
Practical Application ◽  
The Law ◽  
The Relationship

The act against doping in sport stands at the end of an intensive legal discussion. The main points of contention were the introduction of a punishable ban on self-doping and the relationship between national criminal law and the law governing sports associations. Five years after the act came into force, the authors undertook an evaluation of its provisions and its practical application on behalf of the German Federal Government. The book uses case studies and interviews to illustrate the strengths and weaknesses of the act against doping in sport. In this way, the book serves both to understand national legal practice and to provide guidance for legislators and sports associations.

scholarly journals The problem adherence to the rule and jurisprudence

2021 ◽  
pp. 84-98
Author(s):  
Nikita Konstantinovich Fedorinin
Keyword(s):  
Theoretical Analysis ◽  
Philosophy Of Language ◽  
Legal Norm ◽  
Legal Practice ◽  
Practical Application ◽  
The Subject ◽  
Theory Of Law

The discussion on application to law of the principle of adherence to the rule formulated in the works of L. Wittgenstein and S. Kripke has been going in the foreign theory of law since the late 1980s, and now has been joined by the Russian researchers. The article conducts a theoretical analysis and assessment of the positions and arguments expressed by the participants of this discussion, and sums up the results. The author examines the content of the principle of adherence to the rule in the philosophy of language, describes the methods of interaction between jurisprudence and philosophy, and problematizes the link between the principle of adherence to the rule in the philosophy of language and the subject of discussion. The work employs a wide variety of sources and philosophical concepts. The scientific novelty of this research consists in the following: 1) substantiation of the absence of link between the practical application to law of the principle of adherence to the rule raised in the discussion and the content of the principle of adherence to the rule in the philosophy of language; 2) description and analysis of the method of interaction of legal dogma and philosophy of language, the determining role that it plays in structuring the arguments of the participants in the discussion, as well as its defining role for the main outcome of the discussion – refusal to address the problem of adherence to the rule in legal dogma and legal practice; 3) determination of the importance of the principle of adherence to rule for the theory of law in the context of the ontology of legal norm.

scholarly journals PATIENT’S LEGAL CAPACITY AND PRESENCE OF PATIENT’S WILL EXPRESSION

2011 ◽  
Vol 1 (3) ◽  
pp. 181
Author(s):  
Līga Mazure
Keyword(s):  
Medical Treatment ◽  
Legal Protection ◽  
Legal Capacity ◽  
Legal Practice ◽  
Practical Application ◽  
Theoretical Understanding ◽  
Western Countries ◽  
Legal Relationship ◽  
Patient’S Will ◽  
Relationship Of

When the law on the rights of patients came into force on March 1, 2010 the normative regulations regarding the patient’s will became more nuanced and detailed. However, the normative acts still contain inconsistencies and change of approach in connection with patients’ legal capacity. The peculiarities of the practical application of the patients’ legal capacity institute also make foreruns for the transformation of theoretical understanding of patients’ legal capacity in medical treatment. For historical objective circumstances the legal practice is developed in connection with legal relationship of patient and treatment person/ institution in Latvia in contradistinction to western countries. Herewith the meaning of the normative regulations and rights doctrine in legal protection of patients’ legal capacity shall be emphasized.

scholarly journals WTO AGREEMENTS: WAYS OF INTERPRETATION

2021 ◽  
Vol 117 (4) ◽  
pp. 17-25
Author(s):  
TYSHCHENKO Yuliia
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Legal Interpretation ◽  
International Treaties ◽  
Historical Interpretation ◽  
Theoretical Methods ◽  
Legal Norms ◽  
Trade Relations ◽  
Teleological Interpretation ◽  
Wto Agreements

Background. The most of the world’s trade relations are governed by uniform rules that form the legal basis of the WTO. Member states sometimes have different understanding of the content of their rights and obligations, which are in the WTO agreements. This gives rise to controversy between them. To reduce the number of disputes between states, they should use uniform ways of interpreting WTO agreements. Analysis of recent research and publications has revealed that the interpretation of WTO legal sources has not been the subject of a separate study, therefore, requires clarification. The aim of the article is to identify and theoretically comprehend the main ways of interpreting the WTO agreements. Materials and methods. The set of general scientific and special methods of scientific research is chosen as the methodological basis. Results. WTO law consists of legal norms and the general rules of interpretationof the theory of law are applied to clarify their meaning. The legal sources of the WTO are the sources of public international law. Therefore, for the interpretation of the norms of this organization, the methods of international law are primarily used. The main source of rules for the interpretation of international treaties is the 1969 Vienna Convention on Treaties. The Agreement on the Rules for the Settlement of Disputes specifies that the usual rules of interpretation of international law are applied to clarify the rules of WTO agreements. Thus, for the interpretation of WTO agreements, the rules enshrined in the Vienna Convention and other methods of interpretation used in international law are applied. Articles 31, 32 of the Convention provide for such methods of interpretation as textual, teleological interpretation, clarification of the meaning of the term of the contract by establishing the intentions of the participants and historical interpretation. It is worth adding to the list of ways of interpreting WTO law such general theoretical methods as logical, systematic, special legal interpretation, etc. Conclusion. So, the methods of interpretation of the WTO agreements include textual, teleological, historical interpretation, the interpretation of norms by clarifying the intentions of the parties to the treaty, as well as general theoretical methods of interpretation. Keywords: legal interpretation, methods of interpretation, textual, teleological, historical interpretation, intentions of the parties, WTO agreements.

Sign in / Sign up

Export Citation Format

Share Document