scholarly journals Interpretation and construction: An addendum to the discussion about creation and application of law

Pravni zapisi ◽  
2021 ◽  
Vol 12 (1) ◽  
pp. 29-61
Author(s):  
Bojan Spaić
Keyword(s):  
Theoretical Basis ◽  
Legal Theory ◽  
Application Of Law ◽  
Theoretical Tool ◽  
Legal Texts ◽  
Lay Public ◽  
Judicial Interpretations

As part of their regular activities, courts attach meaning to legal texts to determine the normative situation of the parties to the dispute. The activity of attributing meaning to legal texts by the courts is commonly called authoritative interpretation of law. In many cases, the meaning attributed to the text by the court deviates significantly from what laymen and even lawyers would expect, and the deviations themselves are explained in different ways in legal theory. In the purpose of explanation, the terms creation and application of law, extensive and restrictive interpretation, secundum, praeter and contra legem adjudication are used. This paper introduces and explains the concepts of interpretation, construction and their relationship, as possible explanations of situations in which authoritative judicial interpretations deviate from the expectations of the professional and lay public. For this purpose, contemporary textualist and intentionalist (cognitivist) conceptions of interpretation and construction are presented and compared with contemporary skeptical (realist, antiformalist) conceptions. Despite the simplicity and intuitive acceptability of some cognitivist views, skepticism is shown to provide a better theoretical basis for considering the application and creation of rights by courts. The very distinction between interpretation and construction proves to be a useful theoretical tool for explaining the actions of courts, as well as for specifying existing theoretical distinctions.

scholarly journals John Dewey's conception of application of law in its philosophical and social context

2008 ◽  
Vol 19 (2) ◽  
pp. 221-249
Author(s):  
Bojan Spaic
Keyword(s):  
Intellectual History ◽  
Legal Theory ◽  
Cultural Background ◽  
Legal Philosophy ◽  
Critical Approach ◽  
Legal Process ◽  
Application Of Law ◽  
Philosophical Standpoint ◽  
American Society ◽  
Long Course

John Dewey, one of the most important thinkers of pragmatism, elaborated a specific conception of law partially and gradually in the long course of his intellectual career. This part of his broader philosophical outlook is analyzed here through one of its most important segments - application of law - and interpreted in its historical, social and cultural background. The first part of the article concentrates on the 'objective' (cultural, social and historical) reasons for giving emphasis to the application of law in his legal philosophy. This domination of the application of law in his legal thought is derived from the needs of a rapidly changing structure of the American society in the first half of the XX century, and theoretically has its place in an all around phenomenon in American intellectual history in general that Morton White terms antiformalism. The second part of the article analyses his legal conceptions and their connection with the general philosophical position of this pragmatist. Dewey formed his conception of application of law as an integral part of his broader philosophical standpoint, and especially on the basis of his radical reinterpretation of logic and truth. Since his understanding of the legal process has roots in his experimentalist conception of logic that encompasses the apprehension of the process of experimentation as the only warrant for the validity of propositions (that the 'truth' of a proposition is built in the process of its verification), he regards application as conditio sine qua non of the legality of norms in general. This leads us to the last part of the article that scathes possible lines of critical approach to Dewey's work in this field. The view that the legality of norms is derived from their application is in legal theory often regarded as sociologism, inasmuch as it disregards the normative aspects of the legal process and emphasizes the social ones to the point of making it void of the normative aspects in the totality of the process itself. The proper understanding of possible lines of criticism of Dewey's standpoints in legal philosophy guides us back again to confront his conceptions with their cultural background, with which the article begins.

scholarly journals A developed understanding of the beneficiary’s interest in commercial trusts through a comparative study of Chinese law

2020 ◽  
Vol 27 (3) ◽  
pp. 343-357
Author(s):  
Ruiqiao Zhang
Keyword(s):  
Comparative Study ◽  
Theoretical Basis ◽  
Comprehensive Understanding ◽  
Main Claim ◽  
Chinese Law ◽  
Judicial Interpretations

Trusts have existed for centuries, while societies and economies have developed in the intervening years. This requires renovations, or new judicial interpretations, of what a trust is in order to adapt it to modern circumstances. Based on a discussion about the theoretical basis for the research – the new role of trusts in a commercial context and the essence of the trust – the author provides a developed understanding of the beneficiary’s interest to adjust the traditional trust notions to meet the demands of commercial practices. She argues that, based on a case study of Chinese law, a beneficiary’s right can be explained as a special personal claim consisting of three parts: the main claim (personal claims), appurtenant rights (rights of supervision) and security rights (rights of revocation). The theory of beneficiary’s special personal claim provides a more unified and comprehensive understanding of the nature of the beneficiary’s interest, particularly in newly developed commercial trusts.

Jerzy Wróblewski’s Legal Theory and His Influence on Humanist Legal Thought

2020 ◽  
Vol 45 (2-3) ◽  
pp. 200-216
Author(s):  
Marek Zirk-Sadowski
Keyword(s):  
System Theory ◽  
Legal System ◽  
Legal Theory ◽  
Analytical Theory ◽  
Legal Norm ◽  
Legal Interpretation ◽  
Legal Philosopher ◽  
Application Of Law ◽  
Theory Of Law ◽  
Law Making

This paper presents Jerzy Wróblewski’s (1926–1990) theory of law. He was an eminent Polish legal philosopher. His philosophical minimalism, anticognitivism, relativism and moderate reconstructivism constitute the basis for analytical theory of law in Poland. He was developing his theory of law over the span of several dozens of years but the assumptions were formulated already in his first work on legal interpretation published in 1959. His paradigm of legal theory includes several areas: the theory of the legal norm, theory of legal interpretation, theory of the legal system, theory of application of law, theory of law-making and the methodology of legal sciences.

REPRESENTATION UNDER PETITIONARY PROCEEDINGS AND PROCEEDINGS IN THE MATTER OF COMPLAINTS AND PROPOSALS

2020 ◽  
Vol 2 (XX) ◽  
pp. 207-218
Author(s):  
Michał Wszołek
Keyword(s):  
Theoretical Basis ◽  
Procedural Law ◽  
Legal Texts ◽  
Administrative Proceedings

The article discusses the issue of representation under petitionary proceedings and proceedings in the matter of complaints and proposals. The above mentioned issue has been analysed within the context of relations between provisions on administrative proceedings in cases individually decided by way of administrative decision and provisions of the above mentioned proceedings due to lack of regulation on representation in parts of legal texts directly concerning them. The author’s goal is to present the theoretical basis of the representatives’ actions in above mentioned proceedings. Consequently, the article is supported by opinions of legal scholars specialised in administrative procedural law and theoreticians of law, contains analysis of the rule concerning application mutatis mutandis of provisions on administrative proceedings in cases individually decided by way of administrative decision in petitionary proceedings and analysis of application of provisions on administrative proceedings in cases individually decided by way of administrative decision in proceedings in the matter of complaints and proposals based on analogy.

scholarly journals DEKONSTRUKSI HUKUM SEBAGAI STRATEGI PEMBANGUNAN HUKUM PASCA REFORMASI

2010 ◽  
Vol 2 (1) ◽  
Author(s):  
Inayatul Anisah
Keyword(s):  
Rule Of Law ◽  
Legal Theory ◽  
Legal Certainty ◽  
Legal Text ◽  
Legal Development ◽  
Legal Texts ◽  
True Meaning ◽  
Legal Uncertainty

Studi hukum tidak akan lepas dari sebuah kondi?kasi teks yang memiliki tujuan tertentu. Agar tujuan yang terkandung dalam makna teks secara hakiki dapat tercapai, diperlukan adanya dekonstruksi hukum. Melalui  dekonstruksi, upaya pembangunan hukum di Indonesia yang selama ini dikenal hanya sebatas hukum yang berlaku secara yuridis formal, perlu dimaknai kembali sehingga mencakup nilai-nilai kemaslahatan yang berlaku secara universal. Meskipun perlu diakui, bahwa nilai-nilai kemaslahatan tetap tidak akan mampu menciptakan kepastian hukum, kecuali melalui upaya supremasi hukum yang berupa teks-teks itu sendiri. Untuk menciptakan kepastian hukum (legal certainty), ajaran itu hampir pasti mutlak diperlukan, namun dalam  realitas empirisnya ajaran hukum modern tersebut tidak begitu saja dapat diterapkan begitu saja menjadi rule of law tanpa melihat sebagai rule of morality.<br /><br />The study of law coincides with the codi?cation of texts, and the deconstruction of law is considered necessary to understand the true meaning of the legal texts. Through the process of deconstruction, the legal development of the country which is merely focused on formal and juridical aspect of law needs to include new nuance of universal public bene?t, despite any doubt on its legal uncertainty. In order to achieve legal certainty, reference to the legal text is a necessity, even though in reality modern legal theory cannot operate as rule of law without implementing rule of  morality.<br /><br />Kata kunci: Teks, Dekonstruksi, Kemaslahatan, Kepastian hukum<br /><br /><br /><br />

Qualification Errors: Nature, Patterns, Types, Consequences

2020 ◽  
Vol 2 (1) ◽  
pp. 162-188
Author(s):  
V. K. Andrianov ◽  
Keyword(s):  
Law Enforcement ◽  
Theoretical Basis ◽  
Legal Theory ◽  
Good Reason ◽  
Social Consequences ◽  
Point Of View ◽  
Natural Phenomenon ◽  
General Description ◽  
Russian Scientific ◽  
Judicial Errors

Introduction. The need to study qualification errors is based on the fact that they are not accidental at all, but a completely natural phenomenon. It should be understood that any human activity, especially one related to cognition, carries with it the risk of error (“еrrаrе humanum est” – “to err is human”). Therefore, from a social point of view, it is quite natural that qualification errors were made in the past, take place in the present and, unfortunately, are inevitable in the future. On the other hand, since the errors themselves, and their causes and consequences, can be typified and categorised, there is a good reason to talk about their specific laws. In addition, in Russian scientific literature, quite a lot of attention is paid to the study of such generic concepts as “legal error”, “law enforcement error”, “investigative error”, “judicial error”, all of which provide a general description of qualification errors, as well as an analysis of the application of specific criminal law institutions and norms that directly characterize qualification errors. This can not be said about the specific characteristics of qualification errors. Theoretical Basis. Methods. The theoretical basis of the study was the work on the problems of qualification of crimes, as well as work in the field of legal theory, dedicated to law enforcement errors. The methodological basis was the principles of the dialectical method of knowledge, general science (analysis, synthesis, induction, deduction, classification, description) and “chastnonauchnogo” (comparative legal, sociological, system-structural, formal-logical) methods. Results. The article reveals the signs characterizing qualification errors, based on the analysis and generalization of judicial practice. Their detailed systematization is carried out, and the legal and social consequences of qualification errors are highlighted and classified. Discussion and Conclusion. The significance of the study lies in the fact that its results can contribute to the development of general theoretical ideas about the legal, law enforcement, investigative and judicial errors, enrich the teaching of qualification of crimes and qualifying error, and create a basis for improving enforcement.

scholarly journals Legal Discourse as a Multi-Dimensional Integrated Phenomenon and Legal Linguistics as a Syncretic Science

2021 ◽  
Vol 23 (1) ◽  
pp. 220-228
Author(s):  
A. L. Dedinkin
Keyword(s):  
Cognitive Linguistics ◽  
Scientific Literature ◽  
Legal Theory ◽  
Legal Discourse ◽  
Legal Documents ◽  
Verb Forms ◽  
Legal Texts ◽  
And Linguistics ◽  
Language And Law ◽  
Integrative Science

The article introduces legal discourse as part of a complex communicative activity. It is an integrative interdisciplinary phenomenon on the border of jurisprudence and linguistics. The research objective was to establish the constituent parts of legal discourse, which includes legal texts, related scientific literature, and other documents. Legal linguistics is a generalizing discipline that studies the interaction of language and law. The line between legal discourse and other discourses is hard to define. Legal discourse is characterized by unified subjects, procedures, circumstances, and impersonality, that is, the absence of recipient and sender, hence the abundance of impersonal verb forms and impersonal constructions. Legal texts are devoid of national marks, and the vocabulary has equivalents in other languages. The present research was the first to designate a set of texts that make up legal discourse, i.e. texts of laws, decrees, scientific literature on legal matters, various legal documents, judicial texts, texts of interrogations, court speeches, expert opinion, etc. Although legal discourse and legal linguistics have different subjects and tasks, they share the same object, i.e. the interaction of language and law. Legal linguistics is an integrative science based on linguistics and legal theory, which uses achievements of philosophy, psychology, sociology, ethics, cognitive linguistics, pragmalinguistics, linguistic conflictology, etc.

scholarly journals On Possible Applications of Paul Ricoeur’s Thought in Legal Theory

2015 ◽  
pp. 79-88 ◽  
Author(s):  
Marcin Pieniążek
Keyword(s):  
Legal Theory ◽  
Legal Positivism ◽  
Philosophy Of Law ◽  
Legal Text ◽  
Legal Questions ◽  
Legal Texts ◽  
The Subject ◽  
Law And Morality ◽  
Linguistic Methods ◽  
Key Questions

The paradigm of legal positivism, historically the most important attempt at turning law into science, has been subject to thorough criticism in past decades. The criticism has concerned the most important features of legal positivism, and especially the assumption of separation of law and morality, the dogma of statue being the only source of law, and the linguistic methods of interpreting legal texts. With a crisis of the positive paradigms, the demand for new, humanistic grounds for analysing philosophical and legal questions is intensifying. This is the reason for this article’s attempt to point to the application of Paul Ricoeur’s achievements to the key questions of the philosophy of law. It must be emphasised that his works, and especially Soimême comme un autre, may serve as a foundation for a philosophy of law rejecting the problematic claims about the dualism of being and obligation, the distinction of descriptive and prescriptive languages, and also the separation of law and morality. Thanks to this, the legal topos pacta sunt servanda (agreements must be kept) finds a reinforcement in the ontology of the subject applying law and can be understood as an ethically significant pattern of identity of the self. Equally fruitful seems the possibility of combining the questions of the ontology of the subject applying law with the question of a legal text and its interpretation. The assumption of Ricoeur’s perspective leads to a reduction in the distance between the legal text and its addressee, emphasised by the critics of legal positivism. This rapprochement becomes possible thanks to the connection of the question of the narrative that a legal text is with the question of narrativisation of the subject (i.e. the interpreter of a legal text), being itself in the ipse sense, i.e. applying the law.

scholarly journals Systemowość prawa wobec konfliktów społecznych

2016 ◽  
Vol 104 ◽  
pp. 73-88
Author(s):  
Andrzej Bator
Keyword(s):  
Legal Theory ◽  
Deep Structure ◽  
Fundamental Question ◽  
Character Trait ◽  
General Belief ◽  
Political Conflicts ◽  
Starting Point ◽  
Legal Texts ◽  
Scope Of Application ◽  
Made In

THE CONCEPT OF THE SYSTEM OF LAW IN THE LIGHT OF POLITICAL CONFLICTSThe starting point for the presented text is the general belief in the culture of statutory law assumption made in the study of legal texts, that the law is systemic in character. This view has strongly influenced so far the arguments used in legal disputes. The fundamental question put here is the question whether meta-rules, being a consequence of the thesis on the systemic character of law, may be reasonably in a manner acceptable to the parties applied to such legal disputes, which may be qualified also as political conflicts. The answer is positive, yet under certain condition: “systemic character” trait, raised by analytical theories of law, should be used only in so-called “easy cases”, as “hard cases” inevitably belong to a competitive domain of so-termed “political philosophy”. This could imply a significant narrowing of the scope of application of some theorems belonging to these trends in the field of analytical legal theory, which have been dominant in the Polish legal thought. This includes mainly claims connected with the so-called “deep structure of legal science”, eg. a theorem of rationality of the lawgiver.

Till Human Voices Wake Us

2014 ◽  
Vol 3 (3) ◽  
pp. 201-239 ◽  
Author(s):  
Emily Kidd White
Keyword(s):  
Human Rights ◽  
Human Dignity ◽  
Legal Theory ◽  
Theory And Practice ◽  
International Human Rights Law ◽  
Legal Concept ◽  
Working Definition ◽  
Additional Layer ◽  
Legal Concepts ◽  
Judicial Interpretations

The present paper is concerned with the role emotions play with respect to evaluative legal concepts, a class of concepts that require judges to interpret values in their application of the law. The paper focuses on the legal concept of human dignity, a central concept in international human rights law and in the constitutional practice of many states. Nearly every article or book written on the concept of human dignity begins by noting its resonance and the power of its promise. The affective dimension of the concept is, however, soon set aside by most scholars and legal practitioners in order to work out the term’s content. Against this trend, the paper explores the affective dimensions of the legal concept of human dignity. Situated in the field of comparative human rights, the paper examines the various roles emotions play in judicial interpretations of the concept of human dignity in human rights and constitutional law. The paper begins by offering a working definition of emotion before setting out the challenge to legal theory and practice posed by evaluative legal concepts. It then sketches out the landscape of dignity jurisprudence and various key sites for the study of emotion. The paper then develops a typology of roles that emotions play in judicial interpretations of the legal concept of human dignity. The three roles that emotions play, orientation, tracker, and service, draw upon the unique features of emotions to enliven and direct judicial understandings of the concept. Emotions fulfill orientation roles when they imbue a concept with their own meaning, tracker roles when they react to the subject matter of the concept, and service roles when they guide the use of the concept. Each role contributes an additional layer of meaning to the concept by lending structure, and often a sense of importance and clarity, to judicial interpretations of human dignity.

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