scholarly journals The value of legal facts in the mechanism of the penal regulation

2019 ◽  
Vol 13 (1) ◽  
pp. 102-110
Author(s):  
E. E. Novikov ◽  
Keyword(s):  
Social Relations ◽  
Practical Application ◽  
Legal Relationship ◽  
Legal Effect ◽  
Penal Law ◽  
The Law ◽  
The Moment ◽  
Legal Fact

The article is devoted to the study of the role of legal facts in the mechanism of the penal regulation. In the process of analyzing the legal facts contained in the penal legislation the following conclusions were formulated that deserve attention: – the norms of the penal law being one of the main elements of the system of the mechanism of the penal regulation are brought into the sphere of their practical application by legal facts. The absence of a legal fact, if there are sufficient grounds for the application of the prescription, suggests that the rule laid down in the law will be “problematic” or in some cases “dead”; – the mechanism of the penal regulation contains two groups of legal facts. The first group (main) of legal facts influences the penal law relations, which the mechanism in question directly regulates. The second group (special) of legal facts forms social relations, which the mechanism under study does not regulate, but has a legal effect; – the existence and liquidation of the mechanism of the penal regulation depends only on two types of legal facts: the first determines the launch of the mechanism of the penal regulation, giving rise to general penal relations, and the second, freeing the convict from serving the sentence, stops the action of the system of legal means in question. All other types of legal facts only change, transform the mechanism of the penal regulation; – the moment of generation by a legal fact of general legal relationship does not always coincide with the moment of launching the mechanism of the penal regulation. In other words a penal relationship can be created, but the mechanism starts later; – the system of legal means that form the mechanism of the penal regulation consists of legal facts that are not fixed in the norms of the penal legislation, but are necessary to achieve its goals. We are talking about individual acts of the participants of the penal relations.

Utilitarianism and the Criminal Law in Colonial India: A Study of the Practical Limits of Utilitarian Jurisprudence

1994 ◽  
Vol 28 (4) ◽  
pp. 739-791 ◽  
Author(s):  
Kartik Kalyan Raman
Keyword(s):  
Criminal Justice ◽  
Legal Tradition ◽  
British India ◽  
Local Society ◽  
Colonial India ◽  
Penal Law ◽  
The Law ◽  
Common Observation ◽  
The One

The role of legal tradition in the reformist rhetoric of Benthamite Utilitarianism presents us with a contradiction. On the one hand, there is the common observation that Utilitarian jurisprudence was necessarily ahistorical and rejected the past as a source of concepts for reworking the criminal justice system existing in Britain during the late eighteenth and early nineteenth centuries. For philosophic reformers such as Bentham, contemporary British criminal justice was to be replaced by a scientific jurisprudence, abstract, universal, and secular in outlook, and antipathetic to the more conservative insistence that the foundations of the penal law continue to be tradition-based. ‘If society was to see any improvement, its law must be reformed; if its law was to be reformed it must be burned to the ground and rebuilt according to a new and rational pattern.’ On the other hand, we find that the very same Utilitarian thinkers, in works describing the state of the law in British India, were concerned with local rather than universal conceptions of criminality. In his 1782 Essay on the Influence of Time and Place in Matters of Legislation, Bentham, for instance, urged the philosophic reformer to temper change in India by fitting Utilitarian judgments about the law to the frames of local society.

Marxism, Religion and the Taiping Revolution

2016 ◽  
Vol 24 (2) ◽  
pp. 3-24 ◽  
Author(s):  
Roland Boer
Keyword(s):  
Nineteenth Century ◽  
Social Relations ◽  
Religious Tradition ◽  
Revolutionary Movement ◽  
The Bible ◽  
The World ◽  
Specific Interpretation ◽  
The Moment ◽  
The Revolution

This study offers a specific interpretation of the Taiping Revolution in China in the mid-nineteenth century. It was not only the largest revolutionary movement in the world at the time, but also one that was inspired by Christianity. Indeed, it marks the moment when the revolutionary religious tradition arrived in China. My account of the revolution stresses the role of the Bible, its radical reinterpretation by the Taiping revolutionaries, and the role it played in their revolutionary acts and reconstruction of economic and social relations. After providing this account, I raise a number of implications for Marxist approaches to religion. These involve the revolutionary religious tradition, first identified by Engels and established by Karl Kautsky, the question of political ambivalence of a religion like Christianity, and the distinction between ontological and temporal transcendence.

scholarly journals Christian interpretation of anthropological guidelines for lawmaking

2020 ◽  
Vol 38 (Especial) ◽  
pp. 511-522
Author(s):  
Mykola Nesprava ◽  
Mykhailo Rizak ◽  
Vladlen Volkov ◽  
Oksana Voluiko ◽  
Yevhenii Skrypa
Keyword(s):  
Social Relations ◽  
Research Methodology ◽  
Homo Sapiens ◽  
Synergistic Interaction ◽  
Legal Consciousness ◽  
Human Being ◽  
Christian Doctrine ◽  
The Law

The objective of the article is to reveal the main foundations of human creation enshrined in Christian doctrine, which serve as axiological guidelines for the elaboration of laws, providing a humanistic content of the law. The research methodology is based on dialectical, formal-dogmatic, sociological, comparative-legal and documentary methods. The results of the study demonstrate that theocentrism and anthropocentrism are not opposed to each other in Christianity, but rather are combined into an integrated theological and anthropological picture of a man. Considering this prism of legal consciousness as a reflection of the supreme law of God, the authors refute the secular-positivist view of "homo juridicus" as a soulless subject of law and emphasize the role of the Gospel commandments as a guide. for the elaboration of laws. It is concluded that the Christian vision of the synergistic interaction of the human being and the legislator through the unity of three incarnations: "homo spiritus" - "homo sapiens" - "homo juridicus" indicates the values, which are designed to ensure humanization of the law through the humanization of social relations in general.

scholarly journals Islam-osmanli state law in Serbia

2006 ◽  
pp. 271-286
Author(s):  
Miroljub Jevtic
Keyword(s):  
Social Relations ◽  
The State ◽  
Legal Order ◽  
Point Of View ◽  
State Law ◽  
Normal Functioning ◽  
Basic Goal ◽  
The Law ◽  
The Moment ◽  
State Functions

Every state functions through its legal order and that legal order shows the nature of every state. From that point of view, the nature of the state and the authority which functioned in the regions of the Serbian lands from the moment of the Osmanli conquests till the end of that rule was best reflected through the law which regulated social relations. If one views the state which ruled in the regions of the Serbian lands in that way, one can clearly state that it, in its nature, had the basic goal to realize Islamic doctrine. All legal acts which the administration in Constantinople passed to ensure its normal functioning had the Islamic character. As most of these acts had been created long before the birth of the Osmanli state, they cannot be called Osmanli, because they were not such by their origin or their essence. It is specially important that their intention was not to maintain the Turkish national idea, as it could be concluded from a large number of historical syntheses which discuss that part of our history, but the triumph of Islam. Therefore, it is most correct to call that law Islamic-Osmanli law because its largest part had been created before the appearance of the Osmanli state and had as a goal the triumph of Islam; it is an Osmanli law because it was implemented in the territories ruled by the Osmanli dynasty.

Revising the Law of the Mother in the Adoption-Marriage Plot

2014 ◽  
Vol 69 (3) ◽  
pp. 342-365 ◽  
Author(s):  
Gretchen Murphy
Keyword(s):  
Social Relations ◽  
Voluntary Association ◽  
American Fiction ◽  
Liberal Society ◽  
Marriage Plot ◽  
Mansfield Park ◽  
Wuthering Heights ◽  
The Family ◽  
The Law

Gretchen Murphy, “Revising the Law of the Mother in the Adoption-Marriage Plot” (pp. 342–365) This essay traces a common plot in British and American fiction in which an outsider is first adopted and then later marries into a family. Such plots have been linked with the transition from blood to voluntary association in liberal society, but this essay examines the apparent superfluity of adoption and marriage in bringing the outsider into the family. Surveying historicist and psychoanalytic interpretations of the role of incest in the formation of democratic and contractual community in these works, the essay uses Juliet Mitchell’s psychoanalytic theory of siblings to propose that these plots address a central challenge of democracy: mediating equality and freedom when a legally imposed equality among all stands at odds with the freedom to create closed communities of choice. Shifting from adopted siblinghood to marriage enables a fantasy of social relations that are entirely chosen rather than imposed. Novels discussed include Jane Austen’s Mansfield Park (1814); James Fenimore Cooper’s Wyandotté (1843); Emily Brontë’s Wuthering Heights (1847); Maria Susanna Cummins’s The Lamplighter (1854); Frank J. Webb’s The Garies and Their Friends (1857); Anthony Trollope’s Doctor Thorne (1858); Harriet Beecher Stowe’s The Pearl of Orr’s Island (1862); Augusta Jane Evans’s St. Elmo (1866); María Ruiz de Burton’s Who Would Have Thought It? (1872); and Helen Hunt Jackson’s Ramona (1884).

scholarly journals The Urgency of Sociolegal Analysis Studies to See The Authenticity of Law in Indonesia

2019 ◽  
Vol 16 (2) ◽  
pp. 291-318
Author(s):  
Yogi Prasetyo ◽  
Iffah Ja'a
Keyword(s):  
Social Relations ◽  
Rapid Development ◽  
Inductive Reasoning ◽  
Real Life ◽  
Practical Interest ◽  
Law And Society ◽  
Human Beings ◽  
Philosophical Approach ◽  
The Law

This article is the result of research that aims to explain the importance of study about socio-legal. The rapid development of society can lead to problems in life. Human beings must immediately fulfill the demands of practical interest. Therefore, sociolegal development as a discipline of law closely related to real-life in society becomes an urgent role. Various problems in social relations require the role of the law to solve them. We see how the law of life and development in society becomes essential in the science of law because law and society can not be separated. The research method used is a literature review with a philosophical approach. The research results show that sociolegal study is significant to see and understand the law in real life in society. The method of generalized inductive reasoning becomes sociolegal to understand it, and its practical value of use makes sociolegal a legal discipline that can follow the realities of the times.Artikel ini adalah hasil penelitian yang bertujuan untuk menjelaskan pentingnya studi tentang sociolegal. Perkembangan masyarakat yang pesat dapat menyebabkan masalah dalam kehidupan. Tuntutan kepentingan praktis harus segera dipenuhi oleh manusia. Oleh karena itu, pengembangan sociolegal sebagai disiplin ilmu hukum yang erat kaitannya dengan kehidupan nyata dalam masyarakat menjadi peran yang mendesak. Ada berbagai masalah dalam hubungan sosial yang membutuhkan peran hukum untuk menyelesaikannya. Melihat bagaimana perkembangan hukum dan pembangunan dalam masyarakat menjadi penting dalam ilmu hukum, karena hukum dan masyarakat tidak dapat dipisahkan. Metode penelitian yang digunakan adalah studi pustaka dengan pendekatan filosofis. Dari hasil penelitian menunjukkan bahwa kajian sosiologi hukum sangat penting untuk melihat dan memahami hukum dalam kehidupan nyata di masyarakat. Metode penalaran generalisir induktif membuat sociolegal untuk mendapatkan pemahaman tentang itu dan nilai praktis penggunaannya membuat sosiologi hukum merupakan disiplin hukum yang dapat mengikuti realitas zaman.

scholarly journals Prejudice in Administrative Proceedings

2020 ◽  
pp. 75-83
Author(s):  
Anna Barikova
Keyword(s):  
Common Good ◽  
Evaluation Criteria ◽  
Court Decision ◽  
Judicial Discretion ◽  
Discretionary Power ◽  
Legal Relationship ◽  
The Law ◽  
Compliance With The Law ◽  
Administrative Proceedings ◽  
Legal Fact

The paper addresses the issues of judicial discretion in the application of appropriate preliminary categories for the fair and impartial consideration and settlement of disputes. The author focuses on the peculiarities of applying the prejudice to express contradictions and truth-falsehood, establishment of erroneousness and truth of assessment. The administrative court is to assess a prejudicial relationship between judicial decisions concerning an established legal fact or composition, the consequences or claims arising from the same legal relationship in the original proceedings. Such prejudice applies to the following cases: 1) emergence, change or termination of the main legal relationship in the primary process, affecting the use of prejudicial categories in derivative legal relations in the subsequent process; 2) emergence of a legal relationship not generated by the primary relationship, which contains interdependent substantive legal regulations; 3) recognition of a claim for a conviction due to confirmed preliminary categories by a primary court decision, etc. Direction of assessing the circumstances of the case are dealt with in the paper to establish the facts by comparing the judge’s rules of law and conduct of the parties on the basis of operational rules of law, taking into account «legal issues» (in material/primary and procedural/secondary components). Under the influence of the nature of reasoning, such effective evaluation criteria are formulated as observance of the principles of confidence in law, justice, honesty and morality; standards of reasonableness, impartiality, good faith; political goals of ensuring the common good, security of the state, public interests. Within the procedural discretion when using the preliminary categories, the judge is to fully and impartially investigate the «question of fact» regarding the modelling of scenarios and empirical knowledge of the truth on the levels of probability, conviction, absolute certainty. This subject of evaluation is dependent on previous decisions in the direction of «definitive» interpretation in order to make an unambiguous decision. The author adduces examples of legal positions of the Supreme Court and courts of previous instances on applying preliminary categories in administrative proceedings. It has been identified that the possibility of preliminary categories non-application in case of motivated judge’s disagreement in the way of the «recall» within the subject of consideration of the factual circumstances of the case is to be provided. Deviation from prejudice might be justified if there is a need for a «live» transition of judicial practice to interpretation, filling gaps and open «legitimate» completion of the law. Relevant changes are to be implemented in a natural, gradual and coordinated manner. Procedure for overcoming the legal force of the preliminary ruling of a court decision has been proposed. The universality of a court decision is conditional. The standard legitimate way to reject prejudice is to review court decisions. Such decisions might be reviewed for compliance with the law and validity in their adoption. Confirmation of a judicial error «cancels» the preliminary nature of such a decision. Moreover, if the draft decision contradicts the preliminary categories given in another court decision that has entered into force, it is necessary to review unacceptable legal facts and compositions. For example, these could be procedural abuses, artificial distortion (creation or forgery) of evidence, etc. Key words: discretion, judicial discretionary power, prejudice, falsity, truth, contradiction.

Impact of Tradition on Law of Modern China

10.12737/5281 ◽  
2014 ◽  
Vol 2 (8) ◽  
pp. 94-106 ◽  
Author(s):  
Павел Трощинский ◽  
Pavel Troshchinskiy
Keyword(s):  
Social Relations ◽  
Legal Regulation ◽  
Modern China ◽  
Criminal Cases ◽  
Moral Principles ◽  
Close Relationship ◽  
The Law ◽  
The Right ◽  
Legislative Activities

The article discusses some features of the modern legal system in China , formed under the direct influence of Chinese traditional concepts about the role of the Right and the Law in the society. The attention is focused on moral teachings of Confucius and the views of legalists, that had had a decisive influence on legal culture and legal consciousness of a Chinese citizen. Explores the attitude of Chinee to liability and punishment, the death penalty, specificity of the legal regulation of social relations in the Chinese state. Provides examples from the law enforcement practices and legislative activity, confirming the close relationship between the modern and the traditional law in China. The special place in researching is occupied by issues of crackdown legal liability against violators of legal regulations. Analyzes the most resonance criminal cases in relation of those people, who sentenced to death , have committed crimes in the field of illicit drug trafficking , driving while intoxicated, resulted the death of two or more persons, verdicts to the supreme penalty of persons involved in the addition of melanin in infant formulas. The influence of tradition, customs and moral principles on modern legislative activities of Chinese legislator is confirmed by other examples through the prism of the modern and the traditional law in China. The author calls for to pay more attention to tradition while analyzing the current legislation of China. The modern law of China is closely connected with traditional Chinese concepts about place and role of the Law in society.

The Fact of a Rumor: Anthony Trollope's The Eustace Diamonds

2007 ◽  
Vol 62 (1) ◽  
pp. 88-120 ◽  
Author(s):  
AYELET BEN-YISHAI
Keyword(s):  
Literary Realism ◽  
The Novel ◽  
Positive Law ◽  
Recent Scholarship ◽  
The Creation ◽  
The Law ◽  
Legal Fact

This essay joins recent scholarship on the epistemology of realist fiction by investigating the role of facts in the creation of fiction. Close scrutiny of Anthony Trollope's The Eustace Diamonds (1872) reveals several different processes of fact-making: legal ones as well as nonlegal communal endeavors such as rumor, gossip, and the regulation of propriety. The neat division whereby legal facts belong to the realm of the empirical and the facts of rumor belong to the communal does not hold in the novel, however: underneath the surface of almost any empirical and legal fact are traces and residues of a communal endeavor. The instability of facts and fact-making in the novel prompts a reconsideration of the epistemology of realist form and of novelistic probability: just how are fictional facts determined? Building on Irene Tucker's understanding of probability as a self-conscious reflection of the empirical, the essay argues that the ostensibly empirical epistemology of fictional probability is also a communal one. Moreover, the secular empirical rules of realism are not as stable——or empirical——as we have come to understand them. In the legal realm, this epistemological reconsideration shows how literary realism has drawn on the law not only to ground its famously empirical discourse but also to anchor novelistic truth in a communal endeavor. The Eustace Diamonds thus problematizes not only the production of fact in the novel but also the empiricist, positive-law tradition from which this concept emerged.

scholarly journals LEGAL ASSESSMENT OF RESPONSIBILITY WHILE OUTPATIENT FORENSIC MEDICINE EXAMINATION OF INTELLECTUALLY DISABLED PEOPLE

2020 ◽  
Vol 2 ◽  
pp. 45-51
Author(s):  
I. Kudeikina ◽  
M. Losevicha
Keyword(s):  
Forensic Medicine ◽  
Legal Status ◽  
Intellectually Disabled ◽  
Criminal Proceedings ◽  
Legal Proceedings ◽  
Civil Proceedings ◽  
Actual Evaluation ◽  
Legal Effect ◽  
The Moment

While legal capacity emerges at the moment of a person birth and he as a natural person and legal entity possesses it throughout all his life, capability is an institution with much more nuanced nature. Not all natural persons are endowed with capability, what is more a person may lack or be deprived of capability. However, it should be stressed that people with limited capability continue to live in society, to participate in legal proceedings when it is possible, as well as to commit crimes, that is their legal status differs from actual. Evaluation of acts competence committed by persons with limited capability plays an important role both in civil and criminal proceedings. In civil proceedings the issue as to transaction legal effect has to be resolved, in criminal proceedings the issues as to a person’s responsibility committed a crime and, accordingly, as to his penalty have to be addressed. The article is devoted to the role of outpatient forensic medicine examination while assessing the acts committed by persons with limited capability and in a state of insanity.

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