scholarly journals On the Relationship between Facts and Legal Concepts: Methodological Analysis

2020 ◽  
Vol 15 (3) ◽  
pp. 106-115
Author(s):  
ANTON B. DIDIKIN
Keyword(s):  
Legal Order ◽  
Broad Context ◽  
Normative Reasons ◽  
Legal Philosopher ◽  
Legal Norms ◽  
Definition Of ◽  
Legal Concepts ◽  
The Relationship ◽  
Legal Normativity ◽  
Philosophical Understanding

In his paper "The Influence of Normative Reasons on the Formation of Legal Concepts", German legal philosopher Lorenz Kähler attempts to give a theoretical and philosophical understanding of the legal normativity in terms of disclosure of normative reasons that determine the choice and definition of the legal concepts. Despite the broad context of substantiating the problem under study and ways to solve it, the author formulates a number of controversial and disputable provisions. Among them, we can note the ambiguity and uncertainty of the content of legal concepts that are projected by the author exclusively on the field of legal norms, which does not allow us to correctly distinguish the process of cognition of legal phenomena and the application of legal norms. The analysis of the problem of normativity is carried out from the position of separating the normative legal order from the field of empirical facts without the possibility of correlating normative prescriptions with factual circumstances and actions (the normative grounds of which are the main point of L. Kähler, s research). The paper offers a number of critical arguments that demonstrate the methodological incorrectness and unreasonableness of certain judgments of L. Kähler, as well as conceptual decisions about the relationship between facts and norms in the context of the boundaries of normative and factual law.

scholarly journals Defnition as a Tool of the Formation of Legal Concepts

2020 ◽  
Vol 15 (3) ◽  
pp. 92-105
Author(s):  
VITALY V. OGLEZNEV
Keyword(s):  
The Other ◽  
Normative Reasons ◽  
Writing Style ◽  
Philosophy Of Law ◽  
Legal Philosopher ◽  
Legal Norms ◽  
Other Hand ◽  
Interesting Approach ◽  
The One ◽  
Legal Concepts

In his paper "The Influence of Normative Reasons on the Formation of Legal Concepts", German legal philosopher Lorenz Kähler offers a very interesting approach to normativity for the Russian theory and philosophy of law. L. Kähler, considering various normative reasons that influence on the formation of legal concepts, puts forward original and sometimes unexpected conclusions. On the one hand, this can be attributed to the peculiarities of his writing style, but on the other hand, it sometimes seems that he deliberately provokes the reader to questions, involving him in a discussion. In L. Kähler’s approach, there are at least two arguments that require serious clarification and discussion. First, the fact that all the concepts used in legal norms are legal, and, secondly, that the legislator can use lexical, stipulative and real definitions to disclose a content of these concepts. The counterarguments and criticisms offered in this article are based on the statements that the definition is one of the ways of forming legal concepts, and that the question of what is meant by concepts is closely related to the question of which definitions the legislator can use. This led to the following conclusions. First, that in the formulation of legal norms, non-legal concepts, legal concepts and concepts of the law can be used, and this use does not entail that all these concepts become legal. Second, that three types of definitions (lexical, stipulative, and real) are clearly not enough to define these concepts. Moreover, not all of these definitions can be effective and productive, and only some of them are normative in nature. Therefore, it is necessary either to expand the list of definitions, or to significantly modify them in accordance with the specifics of the field of application.

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 Problems of defining legal concepts in laws and other normative legal acts

Legal Ukraine ◽  
2020 ◽  
pp. 30-41
Author(s):  
Volodymyr Klochkov
Keyword(s):  
The State ◽  
Legal Concept ◽  
Legal Norms ◽  
Legal Nature ◽  
State And Society ◽  
Word Representation ◽  
The Law ◽  
Definition Of ◽  
Legal Concepts ◽  
Laws And Regulations

Each legal concept has not only content (content), but also a form. The form requires compliance with the rules for the definition and construction of concepts. Improving legal terminology is impossible without deep development and observance of the rules of analysis and the precise construction of the conceptual apparatus. Gaps in legislation and regulations are derived from inaccuracy, lack of clarity and simplicity of conceptual constructions. The inconsistency of certain legal norms found in various laws and regulatory legal acts, the inconsistency of norms with the prevailing realities of legal life in the state and society impede the fulfillment by state authorities, including law enforcement, of their functional responsibilities. Mistakes made in the preparation of draft laws and regulations, methodological recommendations mainly boil down to the violation of the requirements of the unified laws of logic: the law of identity, the law of contradiction, the law of the excluded third and the law of sufficient reason. The use of inappropriate terminology causes complications in the application of legal norms. The Constitution of Ukraine assigns to the prosecutor the function of representing the interests of a citizen or state in court in cases specified by law. The term representation is not exactly chosen. The word "representation" means: the performance of the duties of a representative; an institution representing the interests of someone; elections, as well as the law, the procedure for the election of representatives to any bodies; representation is a legal relationship in which one party (representative) is obligated or entitled to make a transaction on behalf of the other party that it represents; representation means activity on behalf of someone, on behalf of a person. By its legal nature, a representative can only be authorized for transactions that the person he represents is entitled to carry out. The representation of the prosecutor's office in court is specific, since this body does not need instructions, contracts or other documents. The prosecutor or his deputy should act not on behalf of someone, but on behalf of the state in favor of the person and citizen, state or society, within the limits established by law. In the legislation there is a conflict (conflict) in the law regarding the term «representation». To eliminate such a conflict, it is necessary to amend the Law of Ukraine «On the Prosecutor's Office». Key words: definition of concepts, laws and regulations, accuracy, clarity, brevity of terms.

scholarly journals Some Arguments about the Benefits of Applying the System of Civil Procedure Law in Civil Proceedings

2020 ◽  
pp. 060-066
Author(s):  
A. D. Zolotukhin ◽  
◽  
L. A. Volchihina ◽  
Keyword(s):  
Positive Result ◽  
Civil Procedure ◽  
Legal Norms ◽  
Legal Proceedings ◽  
Procedural Law ◽  
Civil Proceedings ◽  
Definition Of ◽  
Relationship Of ◽  
The Relationship

On the basis of research, the structure of civil procedural law is defined as a system rather than an elementary set of legal norms and institutions. Determining the significance of the system of civil procedural law, it was concluded that having individuality, such a structure is one of the features that distinguish civil procedural law from other branches of law. The authors also come to the conclusion that the established properties of the system of civil procedural law, such as unity, interconnection (interaction) and independence of application, determine the possibility of applying individual elements of the structure of the system of civil procedural law, when considering substantive situations as an independent both individually and collectively. This ensures the possibility of obtaining the required positive result and characterizes it as universal. Critically examining various concepts, the authors offer their own definition of the concept of the system of civil procedural law. The conclusion is also made about the relationship of the system of civil procedural law with the principles of civil procedural law and the procedural form of civil legal proceedings.

Transnational Constitutional Law

2021 ◽  
pp. 134-156
Author(s):  
Chris Thornhill
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Political System ◽  
Legal Order ◽  
Global Society ◽  
Relative Autonomy ◽  
Legal Norms ◽  
Nation States ◽  
Political Perspective ◽  
Definition Of

This chapter presents an account of the constitutional law of transnational society from a distinctively political perspective. It uses a neoclassical definition of the constitution as the legal norms that frame the actions of a political system to examine and construct constitutional functions that reach beyond the legal systems of nation-states. It advances the thesis that the concept of transnational constitutional law can be applied to three separate legal-political domains in contemporary global society. This concept can be used to analyze constitutional aspects of international law, and it can be applied to national constitutional law, both of which have a strong transnational dimension and are supported by normative elements that are formed through transnational processes. This concept can also be applied to characterize and examine an emergent, conclusively transnational legal order, in which legal formation occurs in more spontaneous and contingent fashion. In each domain, constitutional norms produce an underlying inclusionary structure for distinct political functions in society, and transnational constitutional law is defined, most essentially, by its ability to support the relative autonomy of political exchanges and political interactions.

scholarly journals Subsidiary and analogous application of Law in general administrative procedure

2021 ◽  
Vol 60 (91) ◽  
pp. 97-116
Author(s):  
Miloš Prica
Keyword(s):  
Legal Regulation ◽  
Legal Order ◽  
Legal Norms ◽  
Application Of Law ◽  
Administrative Procedure ◽  
General Law ◽  
Subject Specific ◽  
The Subject ◽  
The Republic ◽  
The Relationship

Considering that the expansion of legal regulation and multiplication of legal norms in the legal order of the Republic of Serbia have engendered over two hundred (substantive and procedural) legislative acts referring to the application of the General Administrative Procedure Act (GAPA), there is no general law in the Serbian legal order that could be compared to the GAPA in terms of correlation with other laws. Yet, in our judicature and legal science, there are no clear criteria for regulating the relationship between the GAPA and other (subject-specific) legislative acts referring to the application of the GAPA provisions. The relationship between the GAPA and subject-specific legislative acts may be based on the regime of legal subordination and the regime of legal referral. It further leads to the distinction between subsidiary and analoguous application of the general law, which is the author's original standpoint. Analogous application entails the application of the general law in accordance with the nature of the relationship between the legal procedure rules and the subject matter of legal regulation, whereas subsidiary application entails the application of the general law as a whole in all matters which are not regulated by a subject-specific law. In view of the obligation to harmonize subject-specific legislative acts with the GAPA, the author is of the opinion that such harmonization cannot be put into effect without amending the GAPA. Therefore, the GAPA provisions shall: (1) embody the distinction between subsidiary and analogous application of the GAPA, and (2) strengthen the direct application of the GAPA in administrative matters.

scholarly journals Legal Policy, Legal Order and Civic Oversight in the Penal System

2021 ◽  
Vol 15 (1) ◽  
pp. 145-153
Author(s):  
Evgenii V. Svinin ◽  
Aleksei N. Kubyshkin
Keyword(s):  
Legal Regulation ◽  
The State ◽  
Legal Order ◽  
Scientific Concept ◽  
Penal System ◽  
Legal Analysis ◽  
Forming Process ◽  
Legal Policy ◽  
Legal Norms ◽  
Legal Concepts

Introduction: the study of the state of legal order in various branches and institutions of Russian law is both a theoretical and an applied issue. Finding a solution to this issue affects the efficiency of organizing legal regulation of civic relations. The categories of legal policy and legal order are of key importance in this regard. They are not only mutually dependent, but also necessary for understanding the ways to improve the efficiency of civic oversight of the penitentiary system. Methods: we use dogmatic and legal analysis of scientific theoretical and legal concepts and formal and legal analysis of the current legislation. Results: legal order stems from the implementation of legal policy of the state in the system of legal norms, procedures for their implementation and results of their fulfillment. The use of philosophical categories such as “form” and “content” allows us to identify characteristic features of legal policy as a scientific concept. We prove that it is advisable to distinguish legal policy forms depending on the stages of regulation rather than on the types of legal activity. The stage of rational law-forming process corresponds to the “non-normative” form of legal policy, which consists in the adoption of various concepts and strategies for development; law-making as a stage at which the rule of law is established launches the mechanism for its general application and is accompanied by the “normative” form; the implementation of norms is seen as a final stage of regulation, which is characterized by the presence of casual legal policy. The content of legal policy constitutes a unity of goals, means and principles of activity. Discussion: we focus mainly on analyzing the content of normative legal policy in the sphere of civic oversight of the activities of Russia’s penal system. Content-related specifics of this form of legal policy are determined by the features of the subject and method of regulation and are viewed as principles that are not directly enacted in the legislation, but follow from its “spirit” and meaning. These principles allow us to form an objective view of the content of legal order. Key words: legal policy; legal order; civic oversight; penal system of the Russian Federation; non-governmental monitoring commissions.

Difference between Monetary Responsibilities and Monetary Obligations: Financial and Legal Aspect of Research

2015 ◽  
Vol 3 (6) ◽  
pp. 0-0
Author(s):  
Наталья Омелёхина ◽  
Natalya Omelekhina
Keyword(s):  
Legal Aspect ◽  
Comparative Assessment ◽  
Legal Norms ◽  
The Public ◽  
Public Purpose ◽  
Mandatory Participation ◽  
The Will ◽  
The Moment ◽  
Definition Of ◽  
The Relationship

Analyzing one of the key forms of financial and legal liability — monetary responsibilities, the author explores the relationship between such legal categories as responsibility and obligation. For these purposes, the author makes a comparative assessment of the essential characteristics of monetary responsibilities established by the financial and legal norms and monetary obligations. On closer inspection, it becomes obvious that, primarily, civil law duties, being the most doctrinally and legislatively developed legal institution, should become the object of comparison. The article reveals differences between monetary responsibilities and monetary obligations on the grounds of their origin, subject matter, the nature of arising relationship and the date of termination. Among the key features that distinguish monetary responsibilities from monetary obligations there are extra contractual nature of their occurrence, mandatory participation of a public legal institute (in behalf of whom the execution is exercised and who is vested with the power in relation to the party liable), the impossibility of replacing the members, the public purpose of occurrence, the imperative nature of the definition of the duty and the date of its termination as of the moment of proper execution of the will by the party liable aimed at the termination of the duty.

ADMINISTRATIVE AND LEGAL STATUS OF THE CAPITAL OF UKRAINE - THE HERO CITY OF KYIV AS A GUARANTEE OF THE RIGHTS OF CITIZENS OF UKRAINE AND THE TERRITORIAL COMMUNITY OF THE CITY

2017 ◽  
Author(s):  
Oleksii Chepov ◽  
Keyword(s):  
Legal Status ◽  
Modern World ◽  
Legal Regime ◽  
Legal Doctrine ◽  
City Councils ◽  
The Social ◽  
District Management ◽  
Definition Of ◽  
The Relationship ◽  
The City

The qualitative and clear definition of the legal regime of the capital of Ukraine, the hero city of Kyiv, is influenced by its legislative enshrinement, however, it should be noted that discussions are ongoing and one of the reasons for the unclear legal status of the capital is the ambiguity of current legislation in this area. Separation of the functions of the city of Kyiv, which are carried out to ensure the rights of citizens of Ukraine and the functions that guarantee the rights of the territorial community of the city of Kyiv. In the modern world, in legal doctrine and practice, the capital is understood as the capital of the country, which at the legislative level received this status and, accordingly, is the administrative and political center of the state, which houses the main state bodies and diplomatic missions of other states. It is the identification of the boundaries of the relationship between the competencies of state administrations and local self-government, in practice, often raises questions about their delimitation and ways of regulatory solution. Peculiarities of local self-government in Kyiv city districts are defined in the provisions of the Law on the Capital, which reveal the norms of the Constitution in these legal relations, according to which the issue of organizing district management in cities belongs to city councils. Likewise, it is unregulated by law to lose the particularity of the legal status of the territory of the city. It should be emphasized that the subject of administrative-legal relations is not a certain administrative-territorial entity, but the social group is designated - the territorial community of the city of Kiev, kiyani. Thus, the provisions on the city of Kyiv partially ignore the potential of the territorial community.

Compliance and Conflict of Value in Public Policy Implementation: Comparison between the New Order and the Reformation Era

2018 ◽  
Vol 2 (2) ◽  
pp. 99 ◽  
Author(s):  
Dwiyanto Indiahono ◽  
Erwan Purwanto ◽  
Agus Pramusinto
Keyword(s):  
Public Policy ◽  
Policy Implementation ◽  
Local Level ◽  
Group Discussion ◽  
New Order ◽  
The Reformation ◽  
Public Policy Implementation ◽  
Definition Of ◽  
Conflict Of Value ◽  
The Relationship

This research aims to examine differences in the relationship of bureaucratic and political officials during the New Order (Soeharto’s era) and the Reformation (post-Soeharto) era within the arena of public policy implementation. This is a matter of importance given that there is a change in relations between the two from integration in the New Order to bureaucratic impartiality in the Reformation Era. This study attempts to answer the question: How were the relations of bureaucratic and political officials in the implementation of local level public policy during the New Order and the Reformation Era? A qualitative research has been conducted in Tegal Municipality using the following data collection techniques: interview, focus group discussion, documentation, and observation. Tegal Municipality was selected as the study location because of the unique relationship shown between the mayor and the bureaucracy. Its uniqueness lies in the emergence of bureaucratic officials who dare to oppose political officials, based on their convictions that bureaucratic/public values should be maintained even if it means having to be in direct conflict with political officials. This research indicates that the relationship between bureaucratic and political officials in the arena of local level policy implementation during the New Order was characterized as being full of pressure and compliance, whereas during the Reformation Era bureaucrats have the audacity to hinder policy implementation. Such audacity to thwart policies is considered to have developed from a stance that aims to protect public budget and values in policies. The occurring conflict of values here demonstrates a dichotomy of political and bureaucratic officials that is different from the prevailing definition of politics-administration dichotomy introduced at the onset of Public Administration studies.

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