scholarly journals Methodological Pluralism of Legal Thinking: Problems of Theory and Philosophy of Law

2021 ◽  
Vol 3 (3) ◽  
pp. 17-32
Author(s):  
Elizaveta A. Frolova ◽  
Keyword(s):  
The State ◽  
Legal Issues ◽  
Comparative Approach ◽  
Public Order ◽  
Methodological Pluralism ◽  
Philosophy Of Law ◽  
Theoretical Approaches ◽  
Legal Thinking ◽  
Political Conditions ◽  
Legal Concepts

Introduction. Currently, in theoretical and legal science, discussions continue about the un- derstanding of the content and the methodology of the knowledge of law. This article shows the theoretical approaches to the study of law in different historical periods. Law is analysed from the point of view of formal dogmatic jurisprudence, sociological direction in law, and the theory of natural law in both their historical and theoretical aspects. Theoretical Basis. Methods. The purpose of this work is to study the content of law as a sociocultural phenomenon. To achieve this, the following tasks are examined: the analy- sis of law as the most important social regulator of human activity is undertaken – which shows the right as a part of spiritual life. Further, the main legal schools and trends in law are analysed. In the course of the study, the following methods were used: analysis and synthesis, a her- meneutic, and a comparative approach. Results. As a result of the study, the author came to the following conclusions: 1) the plurality of methodological approaches to the study of the nature and purpose of law are due to the dialogical nature of theoretical and legal sciences (philosophy of law, theory of state and law, history of political and legal doctrines, and the sociology of law); 2) the basis of the methodological pluralism of legal thinking lies in the different content of law. This is where law is understood as an interest, as a freedom, as a social duty, as a morality, as an order of the authorities, as the discretion of a judge, as well as the degree of implementation of the legal phenomenon in the concrete historical conditions of society; 3) each doctrine of law and the state is a model for solving the legal issues of its time. This includes proposing and arguing for one or another option for maintaining public order. It is original and can (and should) be applied in specific socio-political conditions. Discussion and Conclusion. Each doctrine of law and the state is a model for solving legal issues of its time. Offering various options for resolving urgent political and legal issues, these theories can (and do) enter into conflicts with each other. Each of the legal concepts, offering and arguing for one or another option for maintaining public order, is original and can (and should) be used in specific socio-political conditions. At the doctrinal level, political and legal concepts are variants of alternative legal thinking, the validity and relevance of which is confirmed by the degree of demand at a particular historical stage of the develop- ment of society, law, and the state.

The Ruler’s Monologue: The Rhetoric of the Ottoman Penal Code of 1858

2014 ◽  
Vol 54 (3-4) ◽  
pp. 292-321 ◽  
Author(s):  
Tobias Heinzelmann
Keyword(s):  
Political Communication ◽  
The State ◽  
Penal Code ◽  
Public Order ◽  
Traditional Role ◽  
Western Influence ◽  
Starting Point ◽  
Considerable Impact ◽  
Legal Concepts ◽  
The Guardian

The penal code of 1858 was an important step in Ottoman legislation during the reform period (tanẓīmāt) and had a considerable impact on the concept of the state as the guardian of public order. Through the 20th century the penal code of 1858 was generally interpreted as a “(literal) translation” of the French Code Pénal of 1810 and as evidence for the “western influence” on Ottoman legislation. Recent research has started to question this interpretation, focussed more closely on the normative aspects of the Ottoman penal code and analysed the penal code of 1858 as an adaptation of French law within the context of the Ottoman legal concepts during the tanẓīmāt. In my article I analyse the text as a part of political communication, as a monologue by which the state adresses its subjects. Even if large parts of the Ottoman penal code are translations from the French, the rhetoric patterns and terminology have to be taken seriously. The amalgamation of traditional rhetorics and a new terminology turns out to be a successful strategy to legitimise new legal concepts, which include a new relation between ḳānūn and şerīʿat. In my article I will argue that the state’s traditional role as the guardian of public order is the starting point for the introduction of these new legal concepts.


The Guardian of the Constitution

2018 ◽  
Author(s):  
Benjamin A. Schupmann
Keyword(s):  
The State ◽  
Constitutional Amendment ◽  
Public Order ◽  
Positive Law ◽  
Mass Democracy ◽  
The Guardian

Chapter 5 analyzes Schmitt’s theory of dictatorship. Schmitt’s theory of dictatorship was part of his broader criticism of positivism and its inability to effectively respond to the instabilities mass democracy wrought on the state and constitution. Positive laws, including constitutional amendment procedures, could themselves become threats to the fundamental commitments of public order. The suspension of positive laws might be justified. Schmitt argued dictatorship was a necessary final bulwark against this sort of revolutionary threat. The dictator, as guardian of last resort capable of acting outside positive law, could become necessary for a state to survive internal enemies. Yet, although dictatorship could suspend positive law, Schmitt argued it did not suspend the fundamental public order of the state and constitution—a distinction positivism was unable to recognize. This chapter concludes with an analysis of Schmitt’s discussion of the role of the president as guardian of the constitution.

The State and law as phenomena of a person's religious consciousness

2021 ◽  
Author(s):  
Aleksey Panischev
Keyword(s):  
The State ◽  
Philosophy Of Law ◽  
Religious Consciousness ◽  
Spiritual Culture ◽  
Wide Range

The monograph examines the nature and essence of the state, which is seen as a derivative of the religious consciousness of a person. Of course, the origin of the state is explained by many factors and circumstances, but in this case, attention is focused on the religious. At the same time, it is emphasized that the crisis of spiritual culture leads to an anthropological catastrophe and the degeneration of the state. For a wide range of readers interested in the philosophy of law. It can be useful for students, postgraduates and teachers of humanitarian universities.

Official discipline of civil servants: legal framework

2021 ◽  
pp. 434-442
Author(s):  
A.Ya. Petrov
Keyword(s):  
Russian Federation ◽  
Civil Service ◽  
Legal Framework ◽  
The State ◽  
Legal Issues ◽  
Civil Servants ◽  
Federal Law ◽  
Judicial Practice ◽  
The Russian Federation

On the basis of the analysis of Art. 11 of the Labour Code of the Russian Federation, Federal Law of July 27, 2004 No. 79-FZ “On the State Civil Service of the Russian Federation” and judicial practice, topical legal issues of the official discipline of State civil servants are considered.

scholarly journals God's servant working for your own good: Notes from modern South Africa on Calvin's commentary on Romans 13: 1-7 and the state

1998 ◽  
Vol 54 (1/2) ◽  
Author(s):  
P. J. Strauss
Keyword(s):  
South Africa ◽  
Death Penalty ◽  
Public Life ◽  
The State ◽  
Public Order ◽  
General Interest ◽  
The Government

This article aims at demonstrating that Calvin's grasp of the message of Romans 13 in its reference to the state is highly relevant for the present South Africa. This includes the belief that the authority of rulers is ordained by God, be it that of a just or an unjust government, and that their right to govern should therefore be respected; that government should maintain a public order of justice and peace within which people can serve God in all spheres of life; that state authorities should use the sword and even the death penalty when needed, and not shy away from this God-given responsibility; that a society in which crime threatens to create chaos needs stronger measures of punishment; and that rebellion against the government or disruption of public life should be resorted to only as an ultimate means and when carefully considered as in the general interest.

Présence évangélique au Liban, enjeux socio-politiques et culturels d’un engagement multiforme

2013 ◽  
Vol 60 (2) ◽  
pp. 204-217
Author(s):  
Fatiha Kaouès
Keyword(s):  
Social Ties ◽  
The State ◽  
Religious Communities ◽  
Public Order ◽  
Development Projects ◽  
Weak State ◽  
Definition Of

Fatiha Kaouès focuses on evangelical activities in Lebanon, where religious communities are the foundation of public order rather than the State and each denomination has its own social and economic network. This raises the question as to the definition of citizenship and the construction of social ties in the context of a strong religious communitarianism and a weak state. This paper considers a few development projects supported by evangelical movements and the various frameworks, limits and challenges of their activities in Lebanon.

scholarly journals El orden público bajo la amenaza de la criminalidad organizada

2013 ◽  
Author(s):  
Julián López Muñoz
Keyword(s):  
United Nations ◽  
Criminal Law ◽  
Organized Crime ◽  
Criminal Organization ◽  
The State ◽  
Public Order ◽  
The Public ◽  
The United Nations ◽  
Derecho Penal ◽  
Legal Right

Existe la necesidad de crear un concepto o definir, en términos jurídicos, el significado de crimen organizado, en sentido global. A pesar de que Naciones Unidas lo ha intentado, no todos sus países miembros han seguido el mandato. España ha incluido en su Derecho Penal un nuevo tipo delictivo: la organización y el grupo criminal. El orden público, como bien jurídico superior, se verá con esta medida protegido y también el Estado se verá defendido de la acción desestabilizadora procedente de la «gran criminalidad».There is a need to create a concept or define globally, in legal terms, the meaning of the organized crime. Despite the United Nations have attempted it, not all the Member Countries have followed their mandate. Spain has included in its Criminal Law a new category of offence: the criminal organization and group. The public order, as a superior legal right, will be protected by this measure and also, the State will be defended against the destabilizing action from the «great criminality».

scholarly journals State Owned Enterprises Finance from the Perspective of State Funds

Yuridika ◽  
2019 ◽  
Vol 35 (2) ◽  
pp. 363
Author(s):  
Sopian Sitepu
Keyword(s):  
Law Enforcement ◽  
The State ◽  
Company Law ◽  
Legal Issues ◽  
Clear Distinction ◽  
Constitutional Court ◽  
Court Decisions ◽  
State Budget ◽  
Legal Subject ◽  
The Status

The existence of State-Owned enterprises (SOE) as one of Indonesia’s legal entities, whereby the State owns part of all of the capital of the company has presented several legal issues. The BUMN Act that has become the basis for establishing State-Owned enterprises has become its own independent legal subject and separates itself from the wealth of the State and has adhered to the provisions of the Company Law Act so that the capital that is presented by the State to the corporation remains as the capital of the SOE and not form the State. However, existing legislations regarding State funds places the funds for SOE as being part of the State budget. This ambiguity in the status of BUMN Funds is not only found in legislations but also in two different constitutional court decisions that presents inconsistencies towards law enforcers. This clear distinction is crucial in the practice of law enforcement in Indonesia.

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