Իրավունքի և օրենքի կոլիզիաները իրավունքի փիլիսոփայությունում

2021 ◽  
pp. 64-85
Author(s):  
Artur Ghambaryan
Keyword(s):  
Law Enforcement ◽  
Natural Law ◽  
Point Of View ◽  
The Other ◽  
Scientific Methods ◽  
Legislative Policy ◽  
The Law ◽  
Law And Justice ◽  
The One ◽  
Legal Understanding

The aim of the article is to reveal the collisional relationship between justice and the law in the philosophical dimension. The main objectives of the article are to analyze the contradictions between law from the point of view of broad legal understanding, as well as the answer to the question of how law enforcement agent should act if, in solving a specific case, an outrageous contradiction between law and justice is encountered. The author used a number of scientific methods, in particular, historical-legal-comparative methods. The author concludes that supporters of a broad legal understanding consider the issue of contradiction between law mainly from the point of view of legislative policy, however, they do not discuss the issue of how the law enforcement agent should act when an obvious contradiction between law is encountered in a particular case. In the article the sayings «dura lex sed lex» (The law [is] harsh, but [it is] the law) and «lex iniusta non est lex» (An unjust law is no law at all) are considered in the dimensions of the legalism and natural law. The author concludes that the Radbruch formula is an exception to the saying «dura lex sed lex» (The law [is] harsh, but [it is] the law), which has undergone practical approbation. On the one hand, this resolution values the certainty and stability of the law, and on the other hand, it protects the person (society) from the unjustly shouting unjust laws.

scholarly journals On an Interpreter’s Game with the Legal Text and Extratextual Factors in the Derivative Concept of Legal Interpretation

2021 ◽  
Author(s):  
Paweł Jabłoński ◽  
Przemysław Kaczmarek
Keyword(s):  
Legal Culture ◽  
Point Of View ◽  
The Other ◽  
Legal Interpretation ◽  
Personal Factors ◽  
Legal Text ◽  
Other Hand ◽  
The Law ◽  
The One ◽  
Derivative Concept

The aim of this paper is to show the derivative concept of legal interpretation from the point of view of the structure of limits of the juridical power. This structure includes the politico-legal culture, the legal text, the juridical culture, and personal factors, such as ethical and aesthetic judgements. These days, the derivative concept is the most influential Polish theory of legal interpretation. According to this concept the process of interpreting the law is a kind of a game between the legal text and extratextual factors, which are treated as extratextual limits of juridical power. On the one hand, the legal text does not determine the full meaning of the law, although it has great importance for it. On the other hand, the derivative concept precisely identifies certain others factors that are relevant for the content of law.

scholarly journals “THE LAWYER MONOPOLY” SHOULD IT BE MOVED?

2020 ◽  
Keyword(s):  
Transition Period ◽  
Point Of View ◽  
The Other ◽  
Gradual Transition ◽  
Court Cases ◽  
Advantages And Disadvantages ◽  
The Law ◽  
The One ◽  
Representation Of Interests ◽  
Autonomous Republic

The article deals with the debate on the so-called “lawyer monopoly” on representation of interests in court. The Law of Ukraine "On Amendments to the Constitution of Ukraine (on Justice)" adopted on June 2016, dated June 2, 2016, No. 1401-VIII literally divided the legal community into two camps: "for" and "against" the so-called "monopoly of the Bar". It should not be denied that both supporters of this reform and its opponents have strong arguments in favor of their beliefs. In the last four years, both camps have made new arguments in support of their point of view. But every year, since the passage of the aforementioned law, calls for change have become louder. This is due to the fact that, on the one hand, the aforementioned law introduced a gradual transition to representation in all judicial instances only by a lawyer and a prosecutor, and on the other, by the fact that the proposal to exclude the rule of “lawyer monopoly” from the Constitution of Ukraine was one of the first bills of President Vladimir Zelensky. Several steps have now been taken to abolish this "monopoly" but the whole path has not yet been completed. Thus, from January 1, 2020 the Law of Ukraine 390-IX “On Amendments to Certain Legislative Acts of Ukraine on Expanding the Possibilities of Self-Representation in the Court of State Authorities, Bodies of the Autonomous Republic of Crimea, Local Self-Government Bodies and Other Legal Entities, Whatever Their Order, came into force creation ”, but the bill announced by the President No. 1013 of 29.08.2019 still remains within the walls of the Verkhovna Rada of Ukraine. This leads to some contradictions and inconsistencies in court cases regarding who can participate in litigation. In the article the author highlights the advantages and disadvantages of "lawyer's monopoly", as well as the problematic issues of the so-called transition period.

scholarly journals The problem of certainty of legal cognition (in the context of the evolution of Nature Law)**

2020 ◽  
Vol 2020 (3) ◽  
pp. 26-32
Author(s):  
Dzhenevra Lukovskaya ◽  
Irina Lomakina
Keyword(s):  
Law Enforcement ◽  
Natural Law ◽  
Point Of View ◽  
Classical Type ◽  
Positive Law ◽  
Modern Natural ◽  
Legal Communication ◽  
The Subject ◽  
Human Construction ◽  
Legal Understanding

The article deals with the problem of certainty of legal cognition in the context of the evolution of Natural Law. It is noted that the category of certainty was understood differently by representatives of various scientific schools and strands of theoretical framework idea. However, the classical doctrines were similar in the sense that certainty is necessary as the initial principle of cognition of legal reality, in contrast to the relativistic post-classical theories, which took the diametrically opposite principle as a methodological basis, namely «uncertainty». The article actualizes the understanding that Nature Law as a classical type of legal understanding has an internal logic of development. It is noted that modern theories of «Resurgence of Natural Law» generally remain within the framework of natural law concepts, but still overcome the dualism and parallelism of the systems of natural and positive law. In ontology, the modern Natural Law recognizes the human construction of law, the participation of the subject in the constant reproduction of legal reality; in epistemology, it recognizes the inclusion of the subject in the process of cognition, the rejection of the absolutization of the «legislative» mind and the transition to an interpretive «communicative» mind; in axiology, it defends socio – cultural concretization, including in the current legal system. The authors actualize the idea of intersubjectivity of law as integrating various aspects of legal cognition and the operation of law, focusing on identifying the meaning of law not from the point of view of one – dimensional monosubjectivity (individual or homogeneous society), but in dialogical (polylogical) intersubjectivity - in the interaction of subjects of legal communication. Recognition of the dynamism of law, the actualization of law in law enforcement activities problematizes the idea of certainty in law, but on a new, human-centered methodological and theoretical basis.

The Adaptation of Imported Law in Africa

1960 ◽  
Vol 4 (2) ◽  
pp. 66-78 ◽  
Author(s):  
Kenneth Roberts-Wray
Keyword(s):  
Common Sense ◽  
The Other ◽  
Law Reform ◽  
Good Sense ◽  
Legal Rules ◽  
English Law ◽  
The Law ◽  
Law And Justice ◽  
The One ◽  
Law Student

British administration in overseas countries has conferred no greater benefit than English law and justice. That may be a trite observation, but I offer no apology. It has been said so often by so many people—as many laymen as lawyers and perhaps more Africans than Englishmen—that it must be assumed to be true. But what, in this context, are English law and justice, or similar expressions (it is put in many different ways) to be taken to comprehend ? I have heard one or two lawyers who have served overseas speak as if there were a rebuttable presumption that anything suitable for this country should be acceptable for a country in Africa. Even if that were true, and I am sure it is not, it would not that all English legal rules and institutions are appropriate for Africa, for they are not even suitable for England. It is only too true that the law is sometimes “an ass”. Not so often as some laymen like to claim, though laymen may be fair judges of what is good sense in law. I well remember how as a law student I became impatient with principles, especially in the law of torts and the rules of evidence, which to my mind left a large gap between law on the one hand and justice or common sense on the other. I am well aware that in my critical attitude I was at one with the majority, and all lawyers must welcome the labours of the Law Reform Committees, which have borne fruit in a steady stream of important Bills during the last thirty years.

scholarly journals Kontroversi Hukum Islam Kontemporer (Kajian terhadap Aborsi di Bawah Kehamilan 4 Bulan)

2016 ◽  
Vol 12 (2) ◽  
pp. 307
Author(s):  
A. Markarma Yusup
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
Islamic Law ◽  
Medical Science ◽  
Close Relation ◽  
The Other ◽  
Reproductive Life ◽  
The Law ◽  
The One ◽  
Do So

Discussing the controversy of contemporary Islamic law on abortion, especially under four months of pregnancy, it is always interesting to be discussed. Especially if it is associated with the medical science, the law enforcement and human rights. The law seems to be difficult to touch this matter, then it is compounded with suspected of hiding the practice of abortion in the name of health care. Regardless of the question of whether abortion do so on the basis of health considerations alone or indeed do so on the basis of other reasons, but nonetheless deaths from abortion is very worrying. Abortion was close relation to human rights on the one hand because every woman is entitled to her live a healthy reproductive life, but on the other side of the fetus in the mother's womb are also entitled to live and thrive. Two of these are reaping the benefit of debate among scholars. Some scholars allow and forbid others to submit their respective arguments

The Chinese Recognition Problem

1955 ◽  
Vol 49 (3) ◽  
pp. 320-338 ◽  
Author(s):  
Quincy Wright
Keyword(s):  
International Law ◽  
Mainland China ◽  
National Interest ◽  
Point Of View ◽  
The Other ◽  
Recognition Problem ◽  
Press Conference ◽  
The Law ◽  
The One

In a press conference of January 19, 1955, President Eisenhower envisaged the possibility of settling the problem of China by recognizing the existence of “two Chinas”—mainland China, on the one hand, and Formosa and the Pescadores, on the other—and promoting a non-aggression agreement between them. From the point of view of international law this suggestion involves consideration of (1) the de facto situation, (2) the law of recognition, and the application of that law (3) to mainland China, (4) to Formosa and the Pescadores, and (5) in American traditions. Apart from considerations of fact and law, considerations of present national interest and opinion are important.

Alberico Gentili

2017 ◽  
Author(s):  
Andreas Wagner
Keyword(s):  
International Law ◽  
Natural Law ◽  
The Other ◽  
The Law ◽  
The One ◽  
Legal Integration ◽  
Conceptual Resources

This chapter argues that the theory of international law offered by Alberico Gentili is marked by a delicate, if not confusing, combination of the two principles of equal and unrestrained sovereignty of states, on the one hand, and of an international legal integration grounded on natural law, on the other. It suggests that Gentili does not provide the conceptual resources to establish—as a necessary component of international law’s procedures, or at least as an aim—a forum to prevent the law from only ever working to the benefit of the powerful. There is no conceptual, let alone institutional, room for public (in the sense of universal) deliberation of all parties on equal standing so that the affected parties—rather than some authority with either a particularistic pedigree or with more universal, but shaky legitimacy—could agree on common interpretations of the law.

scholarly journals Three perspectives on the Sabbath

2019 ◽  
Vol 53 (1) ◽  
Author(s):  
Francois P. Möller
Keyword(s):  
New Testament ◽  
Focal Point ◽  
Point Of View ◽  
The Other ◽  
The New Testament ◽  
In Christ ◽  
The Creation ◽  
The Law ◽  
The One ◽  
The Church

There is still confusion in theology and especially among members of the church concerning the fourth commandment and its observance. The following questions could be asked: What is the meaning of the Sabbath? What is the intention of rest on this day? Ought this commandment still be honoured like the other nine commandments of the Law? Does it still have any meaning for the church, or is Sunday a replacement for the Sabbath? The objective is to obtain greater clarity concerning the meaning, contents and application of the Sabbath as presented in both the Old and the New Testament. This is done from a dogmatic emphasis by dividing the Sabbath into three perspectives: The Creation Sabbath (God’s identification with it), the Covenant Sabbath (Israel’s identification with it), and the Atonement Sabbath (the church’s identification with it). This division does not assume three separate Sabbaths, but they are perspectives on the one Sabbath of God. The threefold perspective will contribute to a universal view on the Sabbath as presented in the creation narrative, the nation of Israel, and the church of the New Testament. This universal view is grounded in Christ who is the focal point, contents and connection between the three given perspectives. It is a Christocentric point of view that gives perception on the meaning, observance, application and message of the Sabbath for the church and every believer of our day.

Vernunftbegründung in der Ethik

1993 ◽  
Vol 37 (1) ◽  
pp. 22-32
Author(s):  
Christofer Frey
Keyword(s):  
Natural Law ◽  
Present Situation ◽  
Roman Catholic ◽  
Point Of View ◽  
The Other ◽  
General Point ◽  
A Posteriori ◽  
Moral Systems ◽  
The One ◽  
Ethical Systems

Abstract This contribution to a colloquy of Roman-catholic moral theologians and Protestant teachers of ethics challenges the simple juxtaposition of reasonable and biblical foundation of norms and moral systems. The hypothesis of this paper however, presupposes, that >foundation< implies more than a simple deduction from a general point of view or a formal (but a posteriori) Iegitimation of single norms by the principle of universalizability, but it includes transeendental considerations- concerning the problern of human freedom- and the regulating idea of a communion by consensus, integrated into basic perspectives ofconduct oflife. Biblical points ofview regulating ethical systems presuppose such perspectives. Appeals to reason in Protestant ethics transport questions and ideas of the natural-law-tradition even in systems which are deeply linked with a theology of revelation. If this analysis indicates correctly the present situation of Protestant ethics at least in Germany, the often assumed antagonism of a humanist and reason-oriented ethics on the one hand and a heteronomaus ethics relying on revelation on the other tends to be delusive.

La norma č una credenza? Su The law and the Right di Enrico Pattaro

2009 ◽  
pp. 181-192
Author(s):  
Alfonso Catania
Keyword(s):  
Conceptual Framework ◽  
Point Of View ◽  
Legal Positivism ◽  
The Other ◽  
External Point ◽  
Social Dynamic ◽  
The Law ◽  
Normative Dimension ◽  
The One ◽  
The Right

- Enrico Pattaro's volume The Law and the Right features an appreciable finesse of argumentation and an analysis of unusual historical density. The attention paid to psychology absolutely significant when studying an area like that of law, which comprises relationships of expectation and of claim is deserving of recognition as an indispensable, urgent complexification of the conceptual framework of legal positivism and realism, whose reasoning has for some time been manifesting a degree of aridity and, I dare say, poverty. The author identifies the fact that Hart is treated as having espoused the psychologically-inclined realist school as a consequence of the realistic attention to describing normative attitudes as somewhat forced reasoning. These normative attitudes that Hart analyses by drawing a distinction between the internal and the external point of view can hardly be reduced to mere internal experiences that are pregnant exclusively in empirical psychological terms. While the epistemological option in favour of a radical, materialist, psychologist monism expounded in Pattaro's book on the one hand stimulates a valuable investigation into the mental and social dynamic immanent to reality (which must be), no less than the plane of reality that is, on the other hand it runs the risk of casting a shadow on the dimension of designing and transforming reality practised by those who generate norms (marginal in volume compared to the prevalence of believers who make them what they are by the very act of believing in them), thus blacking out the dialectic tension between law and facticity, obedience and effectiveness. This is a classical objection to radical realism that is not overcome by the attention paid by Pattaro to the normative dimension "in the relative sense".

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