METHODOLOGICAL FOUNDATIONS OF THE CONCEPT OF GENERAL THEORY OF LAW J.-L. BERGEL

2021 ◽  
pp. 14-23
Author(s):  
Вадим Леонидович Афанасьевский
Keyword(s):  
General Theory ◽  
Scientific Knowledge ◽  
Legal Discourse ◽  
Scientific Methodology ◽  
Existential Philosophy ◽  
Objective Reality ◽  
Methodological Basis ◽  
The World ◽  
The Subject ◽  
Theory Of Law

Предметом статьи является экспликация методологического базиса разработанной французским правоведом Жаном-Луи Бержелем концепции общей теории права. Автор фиксирует, что методология этой конструкции отличается принципиальной спецификой от классического рационализма научного знания. Бержель для разработки проблем теории права использовал импрессионистский метод, принципиально выходящий за рамки научной методологии. Это приводит к тому, что читатель превращается в соавтора, выстраивая свое представление о предмете теории права. Причем фантазия автора и читателя ничем не ограничена, ибо она уходит от исторических трансформаций развития правовой реальности и традиций теоретического правового дискурса. В статье показано, что предложенная методология привела Бержеля к размытости и непроясненности понятийного аппарата и «терминологическому анархизму». Представив свой анализ его концепции общей теории права, автор статьи приходит к выводу, что основанием методологии Бержеля являются характерные для французской социогуманитарной мысли принципы экзистенциальной философии и постмодернистских штудий. Именно в этом коренится отсутствие целостности в теоретических построениях, наличие эклектизма и туманности употребляемых терминов и понятий. В эту парадигму прекрасно укладывается импрессионистский метод, используемый французским правоведом. Если читатель сам определяет понимание читаемого текста, то смысл уже не определяется объективной реальностью. Он выступает проблемой изолированного индивида, находящегося в произвольно выстроенном им фрагментированном мире, в том числе и мире права The subject of the article is the explication of the methodological basis of the concept of the general theory of law developed by the French jurist Jean-Louis Bergel. The author notes that the methodology of this construction differs in fundamental specificity from the classical rationalism of scientific knowledge. Bergel used the impressionist method to develop problems in the theory of law, which fundamentally went beyond the framework of scientific methodology. This leads to the fact that the reader turns into a co-author, building his own idea of the subject of the theory of law. Moreover, the imagination of the author and the reader is not limited by anything, for it moves away from the historical transformations of the development of legal reality and the traditions of theoretical legal discourse. The article shows that the proposed methodology led Bergel to a vague and unclear conceptual apparatus and «terminological anarchism». Having presented his analysis of his concept of the general theory of law, the author of the article comes to the conclusion that the basis of Bergel's methodology is the principles of existential philosophy and postmodern studies that are characteristic of French socio-humanitarian thought. This is the root of the lack of integrity in theoretical constructions, the presence of eclecticism and the vagueness of the terms and concepts used. The impressionistic method used by the French jurist fits perfectly into this paradigm. If the reader himself determines the understanding of the text being read, then the meaning is no longer determined by objective reality. It acts as a problem of an isolated individual who is in a fragmented world arbitrarily built by him, including the world of law

scholarly journals Dichotomy of principles and rules in R. Alexy’s dual theory of law

2021 ◽  
Vol 118 ◽  
pp. 01014
Author(s):  
Shakhboz Shavkatovich Sattorov
Keyword(s):  
Scientific Knowledge ◽  
Legal Analysis ◽  
Mathematical Apparatus ◽  
Dual Theory ◽  
Legal Study ◽  
Methodological Basis ◽  
The Subject ◽  
Theory Of Law

The purpose of the study is a comparative legal analysis of approaches to principles and rules in R. Alexy’s dual theory of law. The methodological basis of the study are the following fundamental methods of scientific knowledge: general methods (analysis, synthesis, induction, deduction, analogy), as well as special methods (comparative-legal and formal-legal). The application of these methods allowed to subject R. Alexy’s theory of law to an in-depth comparative legal study and to reveal the dichotomy of the principles and rules operating in it. The result of the study was the author’s conclusion that weighing formal and material principles is not only possible, but also a necessary process. In addition, it should be mentioned that the dictate of optimization always requires the implementation of a weighing procedure, and that principles in theory are always implemented indirectly through rules. The principles themselves are the subject of optimization, and the dictate of optimization is the rule. Thus, principles are the basis of rules, and rules are the product of principles. The novelty of the study lies in the author’s approach to the analysis of the dichotomy of principles and rules in the dual theory of law of R. Alexy, as well as the application of mathematical apparatus to substantiate the findings.

scholarly journals Emilio Betti: from the history of law to the general theory of interpretation

2020 ◽  
pp. 30-44
Author(s):  
Iuliia Rossius
Keyword(s):  
General Theory ◽  
Practical Importance ◽  
Dialectical Tension ◽  
History Of ◽  
History Of Law ◽  
The Subject ◽  
Theory Of Law ◽  
The Impact ◽  
Hans Georg Gadamer

The goal of this article consists in demonstration of the impact of research in the field of history and theory of law alongside the hermeneutics of Emilio Betti impacted the vector of this philosophical thought. The subject of this article is the lectures read by Emilio Betti (prolusioni) in 1927 and 1948, as well as his writings of 1949 and 1962. Analysis is conducted on the succession of Betti's ideas in these works, which is traced despite the discrepancy in their theme (legal and philosophical). The author indicates “legal” origin of the canons of Bettis’ hermeneutics, namely the canon of autonomy of the object. Emphasis is placed on the problem of objectivity in Betti's theory, as well as on dialectical tension between the historicity of the interpreted subject and strangeness of the object that accompanies legal, as well as any other type of interpretation. The article reveals the key moment of Betti's criticism of Hans-Georg Gadamer. Regarding the question of historicity of the subject of interpretation. The conclusion is made that the origin of the general theory of interpretation lies in the approaches and methods developed and implemented by Betti back in legal hermeneutics and in studying history of law.   Betti's philosophical theory was significantly affected by the idea on the role of modern legal dogma in interpretation of the history of law. Namely this idea that contains the principle of historicity of the subject of interpretation, which commenced  the general hermeneutical theory of Emilio Betti, was realized in canon of the relevance of understanding in the lecture in 1948, and later in the “general theory of interpretation”. The author also underlines that the question of objectivity of understanding, which has crucial practical importance in legal hermeneutics, was transmitted into the philosophical works of E. Betti, finding reflection in dialectic of the subject and object of interpretation.

scholarly journals Categories of everyday knowledge in German professional discourse

2019 ◽  
Vol 69 ◽  
pp. 00063
Author(s):  
Natalia Shnyakina ◽  
Anna Klyoster
Keyword(s):  
Scientific Knowledge ◽  
Frame Analysis ◽  
Professional Discourse ◽  
Space And Time ◽  
The World ◽  
Categorical Structure ◽  
Cognitive Action ◽  
The Subject ◽  
Subject Of Cognition ◽  
Everyday Knowledge

The study of language as a cognitive phenomenon makes it possible to identify patterns of categorical division of the world. This paper considers the issue of the characteristics of everyday knowledge categories verbalization in professional discourse. On the basis of language fragments, objectifying ideas about the cognitive situation, through frame analysis, surface realizations of significant cognitive categories are investigated, among which are the subject of cognition, the object, the cognitive action, the instrument, the result, space and time. The named semantic nodes form the categorical structure of the frame behind the language fragment. The analysis demonstrates the compatibility of everyday and scientific knowledge division by a speaker; still, it illustrates the specificity of the language expression of frame nodes within the framework of professional discourse.

scholarly journals The theoretical basis of the digital economy in the strategic planning documents

2020 ◽  
Vol 210 ◽  
pp. 10004
Author(s):  
Oleg Dyachenko
Keyword(s):  
Strategic Planning ◽  
Theoretical Basis ◽  
Digital Economy ◽  
High Tech ◽  
Methodological Issues ◽  
Methodological Basis ◽  
The World ◽  
Production Relations ◽  
New Type ◽  
The Subject

The article analyzes the definitions of the concept "digital economy". The study considers the strategic planning documents of the different states, dedicated to the project of digital economy, as the object of investigation. The subject of research is the interpretation of the category "digital economy". The theoretical and methodological issues in the study of the digital economy are considered. The paper makes an attempt to substantiate the problems that will follow in the implementation of the strategy under the conditions of a weak methodological basis for describing the existing techno-economic picture of the world. Among such problems, we emphasize the lack of attention to the production relations in the presented interpretations. We consider that building a digital economy, as a high-tech production ecosystem, will not do without understanding the essence of a new type of production relations. Without this understanding, it will be problematic to build the institutional basis of the digital economy and to create a regulatory framework to control emerging relationships in the digital economy. The paper critically analyzes the existing interpretations of the digital economy, presented in the strategic planning documents, and reveals the author's understanding of the studied category.

scholarly journals Silence as a Specific Kind of Communication in Legal Discourse

2020 ◽  
pp. 104-113
Author(s):  
Joanna Kowalczyk
Keyword(s):  
Speech Acts ◽  
Speech Act ◽  
Legal Discourse ◽  
Strict Sense ◽  
Specific Kind ◽  
Methodological Basis ◽  
Legal Communication ◽  
The Subject

The article is devoted to the description of modifying reality through non-verbal speech acts. The subject of the study are non-verbal signs referring to the category of legal communication. This study included acts of legal communication that are expressed or can be expressed using various forms of silence. The first aim of the study was to determine whether silence can be classified as a speech act in the strict sense. The secondary aim was to determine the usefulness of silence in legal communication. The methodological basis of the analysis was the assumptions of pragmatism in the approach of W. James and the concept of performative acts of speech by J. L. Austin.

scholarly journals Emotions, Thoughts, Words

2020 ◽  
Vol 16 (2 (22)) ◽  
pp. 20-29
Author(s):  
Karine Kochunts
Keyword(s):  
Real World ◽  
Human Cognition ◽  
Objective Reality ◽  
The Real ◽  
The World ◽  
The Subject ◽  
Human Emotions

The subject of the present research is the subtle and intricate interconnection of human emotions, thoughts and words. As we know, human cognition is the ultimate form of reflecting the objective reality. Emotions reflect not the objective items and phenomena of the real world, but some subjective relationships in which these items exist. Thoughts and feelings in the model of the interaction of our consciousness with the world are the two means of its perception. Reflection has got two spheres: an intellectual and an affective, and the interaction of these two means that the rational and the emotional in the consciousness and thinking is manifested in the fact that man can emotionally experience what he/she reflects.

scholarly journals Modification of the claim: limits and their impact on the availability of justice in the Russian Federation

2021 ◽  
Vol 118 ◽  
pp. 04005
Author(s):  
Lyudmila Valerievna Starodubova ◽  
Leonardo Aurelio Ingannamorte ◽  
Igor Vladimirovich Mashtakov ◽  
Olga Sergeevna Lapshina ◽  
Golib Nurullo Kodirzoda
Keyword(s):  
General Theory ◽  
Interdisciplinary Science ◽  
Scientific Methods ◽  
Civil Proceedings ◽  
Legitimate Interests ◽  
General Scientific ◽  
The Subject ◽  
The Russian Federation ◽  
Principles Of Justice ◽  
Theory Of Law

The purpose of the study is to prove the need to lift restrictions in civil proceedings and proceedings in arbitration courts in terms of the limits of modification of the claim and to provide the applicant with the possibility of simultaneous modification of the subject and the basis of the claim while maintaining their previously stated legally protected interest. Certainly, this may be possible only and exclusively with the approval of the judge, as well as with the preservation of all procedural guarantees for the defendant. The methodological basis of the research is the general, general scientific and private scientific methods of cognition used by legal science in the object-subject sphere of cognition of the general theory of law. In addition, a number of synthetic, integrative methods of research are used, which are included in the methodology of interdisciplinary science, which is relevant for modern socio-humanitarian science. The results of the study are the justification that these limits in some cases can completely block the applicant’s access to the mechanisms of justice. The authors argue that this is unacceptable since it violates both the subjective right of the applicant to a defense, and one of the most important principles of justice is the principle of accessibility. The authors also considered the issue of the validity of the limits of the modification of the claim. The novelty of the work is in the results of the analysis of the practice and the alleged hypothetical situations in which the existence of limits for the modification of the claim does not allow the applicant to defend its rights and legitimate interests, as in the identified causes, conditions, and consequences of such phenomena.

scholarly journals The problem of novelty in legal science: to the question on methodological aspects of studying legal doctrines

2020 ◽  
pp. 28-39
Author(s):  
Vladimir Sergeevich Gorban
Keyword(s):  
Comparative Analysis ◽  
Scientific Knowledge ◽  
The Past ◽  
Legal Science ◽  
The World ◽  
History Of ◽  
The Subject ◽  
Methodological Approaches ◽  
Scientific Value ◽  
Methodological Aspects

The subject of this research is the problem of interpretation of continuity and novelty in carrying out historical-philosophical and problematic-theoretical reconstructions of legal doctrines of the past and modernity. The absence of due knowledge on the origin, history of acquisition and application of theoretical ideas of the past often leads to significant modifications, distortions and loss of historical linkage within the legal picture of the world. The repetition of legal ideas and theoretical constructs of the past is natural, but firstly it can and should be viewed as a methodological prerequisite for searching of approaches and means to substantiate the interests to certain aspects of law, and secondly, for ensuring scientific value of modern research, it must be clarified not by the conventionality of scientific knowledge, but based on the reconstruction of origin, application and valid meaning and designation of ideas. The methodology leans on the comparative analysis of legal ideas of the past and modernity in synchronic and diachronic angle. The novelty of the conducted research consists in interpretation of the problem of novelty in legal science based on the requirement for preservation of continuity in terms of their historical-philosophical and problematic-theoretical reconstruction. At the same time, such requirement reveals in a number of specific reconstructions and examples of utilization of methodological approaches for their conduct.

scholarly journals Carceral framing of human rights in Russian prisons

2016 ◽  
Vol 19 (2) ◽  
pp. 221-239 ◽  
Author(s):  
Laura Piacentini ◽  
Elena Katz
Keyword(s):  
Human Rights ◽  
Legal Discourse ◽  
Historical Factors ◽  
The World ◽  
New Finding ◽  
The Subject

This paper introduces to punishment and society scholarship a new carceral framing of human rights in Russian prisons. Russian imprisonment remains elusive to prison scholars and ethnographers around the world. Moreover, on the subject of prisoners’ rights specifically, the scholarship is dominated by legal discourse. The empirical and theoretical scholarship that has developed over the last twenty years has argued that Russian imprisonment is exceptional in the study of world penal systems with the research seeking to gain a sense of this exceptionality through looking at the inertial legacies of Gulag penal culture on present day punishment forms. This article attempts to challenge this claim and will argue that specifically in the area of human rights, Russia has followed a not dissimilar carceral formation to Western prisons. Through an interrogation of the cultural, political and historical factors underpinning how rights are framed in Russian prisons the article suggests that human rights are operationalised as a lever for legal and penal control. This is a significant new finding in the study of Russian imprisonment because of the questions that arise around penal resilience, how rights and penal power develop through discourse and how global penal norms converge across jurisdictions.

scholarly journals FUNCTIONALISM AS A LINGUISTIC TREND

2016 ◽  
Vol 1 (3) ◽  
pp. 74-79
Author(s):  
L. P. Murashova
Keyword(s):  
Scientific Knowledge ◽  
Distinctive Features ◽  
Functional Linguistics ◽  
The World ◽  
The Subject

The topic of the research is particularly relevant because the analysis of similarities and distinctive features of linguistic trends that have developed in different countries of the world is particularly important against the background of convergence of the various national linguistic schools. The article describes the main characteristics of functionalism as a system of scientific knowledge, characterizes the subject and methods of functional linguistics, and describes the distinctive features of functionalism.

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