scholarly journals Promoting the rule of rationality over positive law and legal thinking

2021 ◽  
Vol 69 (4) ◽  
pp. 785-792
Author(s):  
Pierluigi Chiassoni
Keyword(s):  
Legal Philosophy ◽  
Positive Law ◽  
Rule Of Reason ◽  
The World ◽  
Legal Thinking ◽  
Substantive Rationality

The paper makes the following claims. First, the most important problem for contemporary legal philosophy is contrasting the morally disgusting state of the world. Second, qua jurisprudents, the problem must be dealt with indirectly. Third, the indirect way of dealing with the problem requires pursuing the goal of promoting the rule of reason, the dominance of rationality, over law and legal thinking. Fourth, such an overall goal is to be pursued by breaking it down into five more specific goals: namely, promoting the epistemic, methodological, conceptual, instrumental, and substantive rationality of law and/or legal thinking. Fifth, pretentious and idle ways of doing jurisprudence must be put aside.

Montaigne in America: The Political Theory of Judith Shklar

1995 ◽  
Vol 16 (1) ◽  
pp. 167-199
Author(s):  
Mark Hulliung
Keyword(s):  
Political Philosophy ◽  
Political Theory ◽  
Legal Philosophy ◽  
The Political ◽  
The World ◽  
Judith Shklar

For three decades Judith Shklar (1928-1992) was one of the dominant figures in the world of political theory. Not many minds can feel their way into romanticism and then coolly turn round to examine legal philosophy, its very opposite, but she did so with exceptional success. After diagnosing the decline of political philosophy, she surprised many onlookers by making herself a major force behind its revitalization. Writing on Montaigne, Montesquieu, Rousseau, and Hegel, she both offered striking historical interpretations of their meaning and demonstrated how their outlooks could be lifted from their original contexts and pressed into service by the living.

scholarly journals PUNISHMENT FOR THE EXTRAORDINARY CRIME PERPETRATOR ON CHILDREN ECONOMIC EXPLOITATION IN INDONESIA COMPARISON OF LAW IN AUSTRALIA, SENEGAL AND ENGLAND

2019 ◽  
Vol 7 (3) ◽  
pp. 97-101
Author(s):  
Aristya Windiana Pamuncak
Keyword(s):  
Psychological Health ◽  
Public Perception ◽  
Comparative Law ◽  
The State ◽  
Positive Law ◽  
Economic Exploitation ◽  
The World ◽  
The Future ◽  
Study Child ◽  
Physical And Psychological Health

Purpose of Study: Child exploitation and slavery have become a new phenomenon of global crime because it occurred in every part of the world. The exploitation of infants and children in our public perception is underestimated because of cases subject to prosecution only mild and included unusual punishment. Methodology: This research was normative, in analyzing phenomena that occur in society, the authors attempted to answer some of the problems of the rule of positive law in Indonesia in solving the problems of exploitation of children, how to tackle the exploitation of children by other countries, and recommendations to resolve the problems of exploitation against children. Results: Exploitation crimes against children or slavery more appropriately included as an extraordinary crime committed against children, because such measures will not only affect the physical and psychological health but also will greatly affect the future of children and the future of a nation. Implications/Applications: Comparative law between the State of Australia, Senegal, and England, can be recommended for the legislature to make the formulation of regulations on the handling of the exploitation of children more effectively and quickly.

Legal concepts

2018 ◽  
Author(s):  
Ake Frandberg
Keyword(s):  
Legal System ◽  
Psychological Factors ◽  
Intellectual Structure ◽  
Legal Philosophy ◽  
Legal Thinking ◽  
Criminal Intent ◽  
The One ◽  
Legal Concepts ◽  
Contextual Setting ◽  
General Scope

Concept-formation is an important component of law-formation. Well-developed legal orders are profoundly conceptual in nature. Throughout Western legal history, legislators have aimed at basing their law-making on concepts of a general scope (such as ‘property’, ‘possession’, ‘usufruct’, ‘criminal intent’ and many others) – and even more so legal scholars in their reconstruction and development of law. Legal thinking makes use of concepts with many different functions and varying logical status. A distinction can be made between concepts that are an integral part of law themselves (here called L-concepts) and concepts that belong to the professional vocabulary of lawyers and jurists in their handling of the law (J-concepts). Among the L-concepts there are on the one hand concepts whose meaning is totally determined by the rules of one single legal system and on the other hand concepts that pertain to two or more legal systems. The latter concepts have a comparative function. J-concepts provide lawyers with a language enabling them to give an intellectual structure to the legal material, to characterize and discuss the professional-juridical handling of law and the methods used for performing that task, to specify the functions of law and to formulate the underlying values of (the handling of) the legal system. There was a tendency in earlier legal philosophy to hypostasize legal concepts, for example, the concept of ‘right’ in classical natural-law doctrine: that is, to postulate real entities to which our concepts/terms refer. The legal philosophy of the twentieth century has to a large extent been a reaction against this tendency. This reaction has taken three different directions: (1) to reduce the abstract legal concepts to factual phenomena such as certain human behaviour or socio-psychological factors (mainly within US and Scandinavian realism); (2) to assign to legal concepts a normative ontological status, placing them in a world of norms, distinct from the world of facts; and (3) to analyse legal concepts in a contextual setting, that is, to find out how they function in actual legal discourse.

Deriving natural law from the Decalogue, natural inclination and God's silence

2019 ◽  
Vol 72 (03) ◽  
pp. 265-276
Author(s):  
Nicholas E. Lombardo
Keyword(s):  
Natural Law ◽  
Practical Reasoning ◽  
Proper Understanding ◽  
Human Thought ◽  
Positive Law ◽  
Concrete Experience ◽  
Natural Tendency ◽  
The World ◽  
Natural Inclination

AbstractAmanda Perreau-Saussine de Ezcurra saw positive law as a resource for uncovering natural law. She also saw our natural inclinations, especially our natural sociability and our natural tendency toward benevolence, as crucial to a proper understanding of natural law. Drawing on these two foundational ideas of hers, this article will look at the Decalogue, the pre-eminent example of divine positive law, and then our concrete experience of desire, as revelatory of what she called ‘a law-like ordering of the world prior to human thought and action, a natural ordering that constrains practical reasoning’. To her characteristic concerns, it will add attention to God's silence.

scholarly journals Make It New! The Redeeming Modernism of Law and the Collapsing of Its Polarities

Pólemos ◽  
2019 ◽  
Vol 13 (1) ◽  
pp. 149-165
Author(s):  
Angela Condello ◽  
Luke Mason
Keyword(s):  
Legal Philosophy ◽  
Legal Practice ◽  
The World ◽  
Normative Practice ◽  
The Law

Abstract This article argues that law is an inherently modernist normative practice. Constructing a vision of Modernism which is at once an epistemology and an attitudinal disposition to doubt and make anew our assumptions about the world, the authors demonstrate that legal practice encounters the world through individual cases. Through these examples, the law is capable of both interacting with and comprehending that world, while also being forced to question the law’s own precepts and their application. In this manner, the law’s generalisations and abstractions become concrete, and can indeed be upended, through fleeting, impressionistic and highly case-specific examples. This exemplarity within law explains how law is able to navigate its apparently contradictory aspirations and natures which have bedevilled legal philosophy for millennia. In reality, law exists within a series of polarities, rather than contradictions, which are navigated through the law’s encounters with examples from the extra-legal world. The authors conclude that this aspect of the law’s nature also has practical consequences, requiring the law to maintain the fora in which new and novel cases are heard, and through which law’s modernist spirit can thrive.

scholarly journals TEORI KEADILAN DALAM PERSPEKTIF FILSAFAT HUKUM DAN ISLAM

2018 ◽  
Vol 14 (2) ◽  
pp. 27-44
Author(s):  
Muhammad Kurniawan Budi Wibowo
Keyword(s):  
Social Justice ◽  
Islamic Law ◽  
Human Life ◽  
General Concept ◽  
Legal Philosophy ◽  
Human Interest ◽  
Theory Of Justice ◽  
Divine Justice ◽  
The World ◽  
The Law

The existence of Islamic law in the world is to regulate human life, both as a person and as a member of society in order to behave according to the wishes of the Creator. This is different from the general concept of law which is only intended to regulate human life as members of society or in other word the law exists because of the conflict of human interest. Among the problems in the philosophy of Islamic law, the most frequent discourse is about the issue of justice in relation to the law. This is because the law or regulation must be fair, but in fact it is often not. This paper will describe this issue of justice from the perspective of legal philosophy and Islam. In the perspective of legal philosophy, the author will only parse the theory of justice Aristotle and John Rawl. Whereas in the perspective of Islamic legal philosophy, the author will parse the theory of the Muktazilah and Asyariyah divine justice, and the Islamic Maqasyid Theory as the ideals of Islamic legal social justice.

scholarly journals STUDI PERBANDINGAN OBYEK WAKAF MENURUT FIKIH DAN UNDANG-UNDANG WAKAF

2009 ◽  
Vol 1 (2) ◽  
Author(s):  
Sudirman Sudirman
Keyword(s):  
Islamic Law ◽  
Positive Law ◽  
The World ◽  
Triggering Factor

Waqf  (endowment) is one of the charity-promoting activities, which promises Muslim the continuous rewards from the Almighty God although the doer (waqif) has passed away. Historically, the existence of waqf  has become a triggering factor for the development of Islamic proselytizing process all over the world, including Indonesia. In terms of the waqf objects, there are a lot of things that can be endowed. However, the objects can be viewed from two different angles: Islamic law (fiqh) and positive law (act). This piece of writing will elaborate both angles in detail so that the similar as well as the different aspects of both will be objectively observed.<br /><br />Wakaf merupakan salah satu aktifitas yang mendorong kegiatan karitas seorang Muslim. Wakaf juga menjanjikan pahala kekal abadi bagi pelakunya meskipun sang wakif sudah wafat. Dalam sejarah terlihat jelas bahwa keberadaan wakaf telah menjadi salah satu faktor penting yang mendorong proses dakwah Islam ke seluruh dunia, termasuk Indonesia. Dalam hal obyek wakaf, banyak benda-benda yang dapat diwakafkan. Obyek wakaf bisa dilihat dari dua sisi, yakni sisi fikih dan sisi hukum positif. Tulisan ini  akan memaparkan kedua perspektif itu sehingga persamaan dan perbedaan keduanya dapat dilihat secara objektif.

scholarly journals Wakaf Uang Dalam Perspektif Hukum Islam dan Hukum Positif di Indonesia

2016 ◽  
Vol 3 (1) ◽  
pp. 1-20
Author(s):  
Syarif Hidayatullah
Keyword(s):  
Islamic Law ◽  
Islamic Banks ◽  
Legitimate Business ◽  
Positive Law ◽  
The World ◽  
Differences Of Opinion ◽  
Important Position ◽  
Business Sectors

Abstract. Money occupies an important position in the activities of economic transactions in various countries in the world because it not only serves as a medium of exchange, but is already regarded as a thing despite the differences of opinion among jurists as a commodity that can be traded. The provisions of the endowment money held in Indonesia are regulated in Law No. 2004 regarding the Waqf 4l. Endowments money to basically encourage Islamic banks to be a Nazarite professionals. The bank as a surrogate recipient waqf property can be investing the money in legitimate business sectors that produce benefits. The bank itself as nazir entitled to a maximum of 10% of the remuneration, benefits.Keywords: Money Waqf, Islamic Law, Positive Law  Abstrak.Uang menempati posisi penting dalam kegiatan transaksi ekonomi di berbagai Negara di dunia karena tidak hanya berfungai sebagai alat tukar, tetapi sudah dianggap sebagai benda meskipun terjadi perbedaan pendapat di antara ulama fikih sebagai komoditi yang dapat diperdagangkan. Ketentuan tentang wakaf uang yang dilaksanakan di lndonesia yang diatur dalam Undang-Undang Nomor 4l Tahun 2004 Tentang Wakaf. Wakaf uang pada dasarnya mendorong bank Syariah untuk menjadi nazir yang profesional. Pihak bank sebagai penerima titipan harta wakaf dapat menginvestasikan uang tersebut pada sektor-sektor usaha halal yang menghasilkan manfaat. Pihak bank sendiri sebagai nazir berhak mendapat imbalan maksimum 10% dari, keuntungan yang diperoleh.Kata Kunci: Wakaf Uang, Hukum Islam, Hukum Positif

scholarly journals Evolution of the Customary International law on the Cultural Property Plundered in War

2021 ◽  
Vol 18 (4) ◽  
pp. 123-135
Author(s):  
Zhang Yadong
Keyword(s):  
Eighteenth Century ◽  
International Law ◽  
Mutual Influence ◽  
Cultural Property ◽  
Legal Philosophy ◽  
Evolutionary Sequence ◽  
Customary International Law ◽  
Legal Rules ◽  
The World ◽  
Nineteenth And Twentieth Centuries

This article presents an unambiguous evolutionary sequence of historical events leading to the development of customary international law, seen with reference to the mutual influence and transformation of legal philosophy, practice and codification on plundering cultural property during wars. The contemporary legal rules and customs working against taking cultural property as spoils of war are rooted in the eighteenth century, and were consistently developed in the nineteenth and twentieth centuries. Restitution appears the best remedy for the country of origin, especially in the condition where the plundered cultural property is existent and identifiable. Achieving this goal depends on the cooperation and coordination throughout the world, based on a wider customary international law space.

Introduction

2017 ◽  
Author(s):  
John Oberdiek
Keyword(s):  
Moral Theory ◽  
Legal Theory ◽  
Ideal Theory ◽  
Legal Philosophy ◽  
Normative Framework ◽  
Positive Law

The Introduction situates the book’s aims among the aims of contemporary moral and legal philosophy, and traces the underappreciation of what might be called the morality of risking to features of moral and legal philosophy as traditionally practiced. Moral theory has traditionally been concerned with ideal theory, prescinding from the epistemic limitations that give rise to questions of risk. Legal theory, though more sensitive to our epistemic limitations, has nevertheless focused on the most practical issues that revolve around risk, paying little attention to those not already attended to by positive law. The Introduction previews the various issues that a normative framework of imposing risk must address and provides a chapter-by-chapter overview of the volume as a whole.

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