scholarly journals Revitalization of Radbruch's formula in the theory of Robert Alexy

Eudaimonia ◽  
2021 ◽  
pp. 93-135
Author(s):  
Sava Vojnović

In trying to unravel the quandary of the concept of law, Robert Alexy stipulated some sort of an eclectic non-postivistic theory of law which consists of three arguments: from Correctness, Injustice and Principles. He believes in the possibility of a rational justification of objective morality, which he incorporates into the aforementioned three arguments, claiming that law and morality are conceptually connected. This paper will question the limitations of such an approach. The Argument from Correctness states that no system can be considered to have a legal nature if it does not claim correctness, while it will be seen as defective if it does claim, but does not fulfill correctness. On the other hand, the Argument from Injustice is an addition to the previous thesis, through the revitalization of the Radbruch Intolerability and Disavowal Formula – subtracting legal nature from extremely unjust norms. The paper evaluates main objections pointed towards such a conception of law, as well as general problems which may occur within the Arguments from Correctness and Injustice.

10.12737/5497 ◽  
2014 ◽  
Vol 2 (9) ◽  
pp. 18-25
Author(s):  
Ерзат Бекбаев ◽  
Erzat Bekbaev

The function of the concept of law in scientific knowledge is shown as an exact idea about the signs of law distinguishing it from the other objects. Another logical function of concept of law is in the ability to reflect in thoughts more or less complete result, the amount of knowledge about the law. It is argued that the essence of law can be known, provided the pre-obtained full and complete knowledge of the law as a special subject of scientific knowledge. The possibility of using logical principles of the construction of scientific theories in the science theory of law.


2017 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Elżbieta Loska

A LEGACY IN THE ROMAN LAWSummary A notion of a legacy did not exist in the archaic Roman law as a homogenous concept of law and it developed as late as in the pre-classical Roman law. Even then, however, only particular types of legacies, rather than their general concept, were defined. Nevertheless, one may say that a legacy was a civil law instrument by means of which a testator left a certain economic benefit to a particular person, not making him\her an inheritor.At the beginning there were four basic types of legacy in the Roman law: legatum per vindicationem, legatum per praeceptionem, legatum per damnationem and legatum sinendi modo. The first two types had an effect of a disposition while the two latter ones of an obligation only. In sources there also exist two other types: legatum optionis and legatum partitionis. This last mentioned is similar to a later established concept of a fideicommissum, an informal legacy, which became actionable in the times of the Emperor August.Already in the ancient times one may observe a decrease in the significance of these types of legacy, the effects of which directly related to the ownership of objects (legatum per vindicationem and legatum per praeceptioneni).They were connected with the notion o f an ownership according to ius civile and formal means of transferring the ownership. They lost its significance when - beside the oldest civil law - praetorian law and emperors’ constitutions appeared and when the ownership was standardised. After the issuance of senatusconsultum Neronianum in the 1st century AD it became possible to retain the legal effectiveness of the legacies which until then were considered invalid due to a failure to preserve an appropriate form; an ex /^ con version took place. It resulted most probably in converting invalid legacies into legatum per damnationem.In the subsequent centuries, emperors’ constitutions led to a harmonisation o f the concept of legacy (while the division between the legacy having an effect of a disposition and an obligation was still preserved), and later on to equalisation in the legal effect of formal and informal legacies. The most important regulations were: the constitution of the Emperor Constantinus dated 339 AD, which abolished the requirement of solemnitas verbum and two constitutions of the Emperor Iustinianus - the first - dated 529 AD - introduced an identical legal nature of all legacies, the other - dated 531 AD - completely equalised legacies with fideicommissa. 


2017 ◽  
Vol 3 (1) ◽  
pp. 171
Author(s):  
Zygmunt Niewiadomski

LEGAL OBSTACLES TO DEVELOPMENT OF HOUSING CONSTRUCTIONSummary The development o f housing construction in the Polish Republic encounters numerous obstacles not only o f economic but also legal nature. The main obstacles are the following: deficiencies o f the investment processes law; excessive limitations of the construction law, lack of its stability and corruption promoting legal regulations. As a result, the investment process in Poland is lengthened and conflict-inducing and - as such - it demands changes. It is necessary that the State should become more active in establishing development- promoting legal policies and, on the other hand, less restrictive towards investment. This means that the following actions should be taken: establishing economic and legal mechanisms fostering personal initiative and entrepreneurial spirits, favorable tax regulations, broad-based provision o f credits for the housing construction businesses and making the investment process much less formal.


Lex Russica ◽  
2020 ◽  
Vol 1 (1) ◽  
pp. 88-117
Author(s):  
Yu. A. Vedeneev

The law exists in the form of institutions and in the form of representations of institutions, since the representation of something (phenomenon) has a conceptual dimension in the representation of something (concept). Representations of law and representations of law are two aspects of the expression and manifestation of the general legal reality. This, in fact, leads to a fundamental dilemma in determining the subject of legal science. This is the science of law or the science of legal science. Given that the concept of law is a theory of law developed into a system of definitions, the practical language of law finds itself in the theoretical language of jurisprudence, and vice versa. The languages in which the law operates, and the languages in which the phenomenon of law is interpreted, constitute the general object and subject of jurisprudence.Jurisprudence is a conceptual part of legal reality, both an object and a subject of legal science. The evolution of jurisprudence in the cultural-historical logic of changes in its subject and methods is the basis for changes in its disciplinary structure and connections in the general system of social and political sciences. Each cultural and historical epoch of the existence of law corresponds to its own grammar of law and its own epistemology of law, that is, its own analytical language and disciplinary format of legal knowledge. The law exists in the definitions of its concept. The concept of law has both an ontological and epistemological status. One thinks of law because it exists, and one understands the law because it is defined. Each tradition of understanding the law can be conceptually seen in the phenomenon of law that other traditions of legal understanding do not see or do not notice. The history of the development of the concept of law (conceptualization of law) contains the history of the development of legal institutions (institutionalization of law). Both components of legal reality — objective and subjective grounds and conditions for the emergence and development of the phenomenon of law live in the framework definitions of their social culture, its language and discourse. That is, they live in historical forms of awareness and understanding of one’s own law — from the law indicated in rituals, myths, signs and symbols, to the law indicated in canonical texts, doctrines and concepts; from the law of disciplinary society to the law of network communities; from the law of political domination and bureaucratic management to the law of civil communications and network agreements.


Author(s):  
Matthew H. Kramer

H. L. A. Hartʼs The Concept of Law is, of course, primarily a work of legal philosophy. It is indeed the most influential work of legal philosophy in the English language (and perhaps in any language) published during the twentieth century. However, the immense importance of the book for philosophers of law should not prevent readers from discerning its importance for political and moral philosophers as well. Hartʼs insights into the nature of law and sovereignty are themselves of great significance for political philosophy, and the second half of The Concept of Law contains ruminations on justice and on the relationships between law and morality that deserve attention from anyone who aspires to think clearly about the problems of political philosophy.


1963 ◽  
Vol 21 (2) ◽  
pp. 270-303
Author(s):  
B. E. King

There are but a few days—of who shall say what importance—between the Julian and Gregorian calendars, considered as schemes for the interpretation of recurrent movements in our solar system. And yet, from the point of view of each, the other seems somewhat out in respect of the characterisation of nearly every year, month, week and individual day. The gap between the legal theories of John Austin and Professor Hart—between their models of the legal universe—is somewhat more than this. Its demonstration provides the foundation for Professor Hart's new book. But there may here be some analogy to what divides the concept of law, as elucidated by Professor Hart in terms of rules, from the concept of law as a system of action constructed by the writer in earlier numbers of this Journal. If Professor Hart now reveals himself as conceptual pragmatist as well as linguistic philosopher the writer's gratitude to Professor Hart in the latter capacity is only tinged with regret that he does not display greater boldness in the former.


2021 ◽  
pp. 174387212110432
Author(s):  
Andro Kitus

Legitimacy is a concept that has been largely forgotten by the deconstructive discourse on law and politics. This article seeks, on the one hand, to reassess the role of legitimacy in deconstruction and, on the other hand, to bring deconstructive thinking to bear on the concept of legitimacy. By re-reading Derrida’s “Declarations of Independence” through the lenses of his later texts on sovereignty and (counter)signature, it is argued that, rather than being deconstructible, legitimacy is deconstructing any self-founding of law and power. As such, legitimacy functions not as an evaluative concept of law and order but as a constantly insisting demand that facilitates the principles of responsibility and responsiveness.


2015 ◽  
Vol 11 (1) ◽  
pp. 71
Author(s):  
Arnar Þór Jónsson

This article is focused on two basic concepts: Law and Society. Older sources do not clearly indicate that a sharp distinction was commonly drawn between the society on one hand and the law on the other. Regardless of the evolution and progress which has been made in both areas the ties between these two subjects have not been disconnected. In fact, one does not have to reflect long on the matter to understand the obvious and necessary coherence. The influence is interactive. This reciprocity means, inter alia, that rights cannot be claimed without the shouldering of corresponding duties. Comprehension of this basic strand in the concept of law demarcates the basis for our everyday existence.


2021 ◽  
Vol 54 (1) ◽  
pp. 78-97
Author(s):  
Dieu-Merci Ngusu Masuta

This article provides a study of the modalities and legal effects of the termination of the functions of members of the Congolese Constitutional Court. It offers a detailed analysis based mainly on the relevant provisions of Ordinance No. 16/070 of August 22, 2016 on the special status of members of the Constitutional Court. This Ordinance was adopted in application of the Congolese Constitution of February 18, 2006 in conjunction with organic-law No. 13/026 of October 15, 2013 on the organization and functioning of the Constitutional Court. Distinguishing on the one hand the normal cause of cessation of functions - the expiry of the mandate - and on the other hand the so-called exceptional causes - the resignation, dismissal and death of a member -, the study shows that the enumeration thus retained from the ordinance is incomplete with regard to the above-mentioned organic law. Thus, the list must be supplemented with the "nullity of the appointment" of a member in accordance with articles 2 and 3 of that organic law. The law is silent, however, on the issue of the voluntary retirement of members, although the implementation of this right inevitably has an impact on the end of their functions. The study therefore continues by an examination of both the general and the specific legal effects of these different modalities of ending the functions of a member of the Constitutional Court. Finally, in order to support and complete this essentially theoretical analysis, the article also looks at the question that remains most topical in Congolese constitutional law, namely the legal nature of the 'power' of the President of the Republic to appoint members of the Constitutional Court to other Courts or functions during their term of office. It concludes that such a power is not justified in the current framework of Congolese constitutional law. Indeed, it is inconceivable that such appointments should be imposed on the Constitutional Court members, their acceptance being the only exception to the principle of irremovability that governs them. Such a case should be considered one of voluntary resignation and a subsitute member should therefore only be appointed after this situation has been ascertained and established by the Constitutional Court.


2020 ◽  
Vol 4 (1) ◽  
pp. 1-125
Author(s):  
Angela Condello ◽  
Tiziano Toracca

Abstract The present publication stems from the idea that a comparison between law and literature must be framed starting from the modes in which law and literature function. In this sense, we read law and literature as arts of compromising characterised by an analogous and yet, at the same time, profoundly different structure. Both, in fact, mediate conflicts between norms and transgressions, and more precisely between a principle of normativity (repression) on the one hand, and a principle of counternormativity (repressed) on the other hand. Through a progression in three steps, aimed at clarifying some peculiarities of law (1) and literature (2), and by referring to examples of their interaction (3), some hypotheses are sketched on why a placement across these two arts of compromising suggests some theoretical itineraries on their threshold.


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