On the problem of legality-legitimacy in theory of law and philosophy of law

2020 ◽  
pp. 19-27
Author(s):  
Artem Aleksandrovich Savenkov
Keyword(s):  
Research Methodology ◽  
Critical Analysis ◽  
Legal Theory ◽  
Legal Aspects ◽  
Philosophy Of Law ◽  
Legal Legitimacy ◽  
Legal Thinking ◽  
The Subject ◽  
Theory Of Law ◽  
Area Of Application

The subject of this research is the problem of understanding and interpretation of the meaning and designation of one of the key concept of modern legal lexicon – “legitimacy”. Legitimacy became an attribute of the current scientific paradigm of legal thinking, because broadening the area of application, it is used as a certain standard of highest legality, often perplexing comprehension of the problems of legal theory, as on etymological level its leans only on one of the Latin versions of the word “legal”. In the same platitude, legitimate legality and legal legitimacy are a common tautology, which in the context of theory of law and philosophy of law, insistently dictates the necessity to clarify this term and definition. Research methodology suggests the analysis of the problem of legality-legitimacy from the perspective of differentiating legal and other disciplinary approaches: political scientific, sociological, etc. The novelty of this study consists in the problematic-critical analysis of the concept of “legitimacy” on the context of theory of law and philosophy of law. The conducted research demonstrates that the problem of legitimacy represents is a terminological substitution within the framework of legal-positivistic doctrine for the so-called not “purely” legal aspects: sociological, psychological, political scientific, and other. 

scholarly journals A moldura kelseniana: formulação dos limites da interpretação na Teoria Pura do Direito

2020 ◽  
pp. 221-244
Author(s):  
Paulo Henrique Rodrigues Pereira
Keyword(s):  
20Th Century ◽  
Philosophy Of Law ◽  
Pure Theory ◽  
Hans Kelsen ◽  
Legal Thinking ◽  
Theory Of Law

RESUMOA Teoria Pura do Direito figura como uma das grandes obras do pensamento jurídico do século XX. Entretanto, pouco se explora a visão do autor sobre a interpretação das normas e dos princípios em sua visão totalizante do direito. O presente artigo busca reconstituir a discussão sobre as limitações da visão de Hans Kelsen sobre a interpretação no direito, focando em sua Teoria Pura. Através da delimitação das críticas feitas a Kelsen, nominalmente sobre incoerência e insuficiência da operação de sua teoria, o autor passará à abordagem do próprio Kelsen sobre a interpretação como resposta a tais críticas, para então produzir um balanço desse debate.PALAVRAS-CHAVEKelsen. Interpretação. Teoria Pura do Direito. Filosofia do Direito. ABSTRACTThe “Pure Theory of Law” occupies a place as one of the most relevant works of legal thinking in the 20th Century. However, little is discussed on Hans Kelsen’s vision on interpretation of norms and principles in his systematic vision of Law. This article seeks to explore the discussion regarding the limitations of his vision on interpretation of Law, focusing on his Pure Theory. Through the delimitation of the criticism to his work, specially of incoherence and insufficiency of the operation of his theory, the author will then pursue Kelsen’s own approach on the interpretation as an answer to such criticism, to then display an overall assessment of this debate.KEYWORDSKelsen. Interpretation. Pure Theory of Law. Philosophy of Law.

scholarly journals methodological conflict between theory and philosophy of law

2021 ◽  
Vol 5 (S3) ◽  
Author(s):  
Sergey S. Shestopal ◽  
Elena A. Kazachanskaya ◽  
Svetlana V. Kachurova ◽  
Evgeniy V. Kachurov
Keyword(s):  
Modern Philosophy ◽  
Ontological Status ◽  
Philosophy Of Law ◽  
Legal Science ◽  
Scientific Disciplines ◽  
The Subject ◽  
The Law ◽  
Theory Of Law

The subject of this research is the recently intensified competition in modern jurisprudence of two equally respectable scientific disciplines: philosophy of law and theory of law. The goal is to demarcate the meaning of these concepts. Their ontological status (essential significance) in relation to the existence of the law, the reflection of which they are, is also considered. Based on analysis of the existential criticism of the dominant forms of modern ideology, it is proved that the existing theories of law depend on these forms. A stable tendency in modern philosophy to return legal science to the origins of philosophical knowledge of legal reality is stated.

scholarly journals Doctrinal basis of the Soviet law science —epistemological and praxeological dimensions

2021 ◽  
Vol 7 (3) ◽  
pp. 45-53
Author(s):  
Evgeni A. Apolski ◽  
Andrei Yu. Mordovtsev ◽  
Aleksei Yu. Mamychev
Keyword(s):  
General Theory ◽  
Legal Theory ◽  
Scientific Research ◽  
Theoretical Knowledge ◽  
Legal Knowledge ◽  
Philosophy Of Law ◽  
Legal Thought ◽  
History Of ◽  
Theory Of Law ◽  
Further Development

The article considers the Soviet dissertation theoretical and legal doctrines as a scientific category with a set of specific features. The author draws attention to the fact that the massive layer of legal theoretical knowledge known as Soviet jurisprudence and the legal teachings reflecting the evolution of Soviet law are insufficiently studied in ontological and epistemological terms. In specific, the role, place, and significance of Soviet dissertation legal theoretical teachings are lacking in the literature. Moreover, the Marxist methodology of legal knowledge, which should be used in modern educational and scientific space, lacks clear assessment. The author analyzes the most important thesis on the theory of law, which reflect the ontological and methodological foundations of the Soviet law and legal theory presented in the theses. This article lays the basis and the vector of further development of Soviet jurisprudence. These dissertation doctrines are analyzed to further use them in the scientific research of laws and trends in the development of Soviet legal thought. The results of these analyses are crucial for the history of political and legal doctrines, general theory of law, and philosophy of law and can be used in other areas of legal (including industry) science, considering their interdisciplinary heuristic potential.

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 Medical activities and innocent cause of harm: criminal legal aspects

2021 ◽  
Vol 39 (3) ◽  
pp. 144-150
Author(s):  
V. N. Voronin ◽  
Keyword(s):  
Public Relations ◽  
Medical Care ◽  
Criminal Law ◽  
Research Methodology ◽  
Legal Aspects ◽  
Criminal Code ◽  
Legal Analysis ◽  
Medical Worker ◽  
Scope Of Application ◽  
The Subject

The subject of the research is public relations in the field of application of art. 28 of the Criminal Code RF ("Innocent infliction of harm") in relation to medical workers. The author reveals certain problems of establishing a case (case) in case of defects in the provision of medical care, as well as the actions of a doctor in connection with neuropsychic overloads. The author proposes grounds for expanding the scope of application of art. 28 of the Criminal Code and minimization of the criminal law risk of a medical worker. The article presents and systematizes the main theoretical views on innocent harm in medicine, and also examines the available practical cases. The research methodology is based on private methods of legal analysis and legislative technique

scholarly journals The concept of criminal procedural legal relations: definition of concept

2019 ◽  
pp. 185-196
Author(s):  
V. Vinnychenko
Keyword(s):  
Critical Analysis ◽  
Public Law ◽  
Axiomatic Method ◽  
Criminal Proceedings ◽  
Procedural Law ◽  
European Court ◽  
The Face ◽  
The Subject ◽  
Theory Of Law ◽  
Definition Of

The concept of criminal procedural legal relations in the context of modern globalism of criminal proceedings is considered in the article. Scientific approaches to definition of concept of legal relations, subject of criminal procedural law, method of criminal procedural law are investigated. The purpose of the article is to define the concept of criminal procedural legal relations under modern criminal proceedings. The author is investigated: Approaches to defining the concept of legal relations and Criminal procedural legal relations; Subject of criminal procedural law and method of criminal procedural law. During the research, a critical analysis of the mentioned scientific material is made and its own scientific approach to the definition of the criminal procedural legal relations is developed. During the copyright it is investigated a number of methods of scientific cognition, in particular, how: the method of scientific formalization; Axiomatic method; Hypoolytic-Deduktive method. The concept of the theory of Law on definition of notion and signs of legal relations was investigated, the analysis of these concepts was made and the concept of criminal procedural legal relations was chosen. The concept of criminal procedural legal relations provided by Ukrainian scientists and the critically-critical analysis of these concepts is investigated. It is given that existing approaches are not correct for modern legal reality and cannot be flexible in the face of progressive globalized development of the modern criminal procedural law. Scientific approaches to the subject of criminal procedural law as signs of criminal procedural legal relations are investigated. Scientific approaches to definition of criminal procedural law method as signs of criminal procedural legal relations are investigated. The analysis of the criminal procedural legislation and precedents of the European Court of Human Rights as a source of international public law is carried out. Generalized and scientifically deduction method output the concept of criminal procedural legal relations, which may be applied under the conditions of modern globalized criminal proceedings. The study has an interdisciplinary character. The author conducts research using the scientific base of Globalistics, Furturilogy, international relations.

scholarly journals Law in other contexts: stand bravely brothers! A report from the law wars

2008 ◽  
Vol 4 (2) ◽  
pp. 111-134
Author(s):  
Oscar Guardiola-Rivera
Keyword(s):  
Political Philosophy ◽  
Legal Theory ◽  
Philosophical Tradition ◽  
Surface Appearance ◽  
Political Justice ◽  
General Terms ◽  
The Subject ◽  
Theory Of Law ◽  
Object Of Study ◽  
Critique Of Violence

AbstractThis essay argues against the two pillars of current research on law and globalisation, from the perspective of legal theory and political philosophy: first, the distinction between ‘well-ordered’ and ‘not so well-ordered’ societies; second, the sociological model of the subject as pacified, fearful and isolated (to sum up, in harmony). It is argued that mainstream legal theory and political philosophy merely reflects the actual rules of the game of competition, dispute and conflict. In contrast, this essay takes sides with the anthropological and philosophical tradition that conceives the subject as antagonistic and in state of lack, profoundly concerned with the other, whom she imitates and whose standpoint she must be able to share if she is to make sense of the world. Furthermore, it is argued that transitivity or imitation lies at the very origin of conflict and dispute; lack and antagonism remain thus at the core of society, in spite of the surface appearance of harmony that characterises post-modern societies. Because of this, any general theory of law and society that wishes to be relevant at the time of globalisation must make the experience of antagonism and violence, motivated by imitation and envy, and its containment, its object of study. To do this, it must abandon the dualist conception of subjects and societies expressed in the distinction between ‘well-ordered’ (more violent) and ‘not-so-well-ordered’ (less violent) societies that has informed its investigation to this day, in order to declare in the most general terms a critique of violence from the standpoint of the victim, as of a piece with its demand for global social and political justice.

scholarly journals Doctrinal legal thinking as the basis of theoretical research (on the example of the theory of status public law)

2020 ◽  
Vol 6 (3) ◽  
pp. 30-36
Author(s):  
Elena M. Krupenya
Keyword(s):  
Legal Theory ◽  
Modern Science ◽  
Public Law ◽  
Theoretical Research ◽  
Personal Knowledge ◽  
Initial Stage ◽  
New Knowledge ◽  
Legal Thinking ◽  
The Subject ◽  
True Knowledge

The author analyzes doctrinal legal thinking in the context of ontological characteristics of thinking the object of metasubject research in the field of cognitive psychology, physiology of thinking and other areas of modern science and, above all, in philosophy. As a result, problematizes the resources of doctrinal legal thinking in the process of producing new true knowledge, organized in the form of private legal theory, the indicators of which correlate the criteria of epistemology. Attention is drawn to the fact that in the process of developing private legal theories, which feeds the General legal theory, at the initial stage, of course, it is important to use the experience accumulated within a certain doctrine. Nevertheless, the limitation of the doctrinal legal worldview is noted. The author sees it in the fact that the doctrinal legal worldview (paradigm) is not able to ensure the transition to a qualitatively new knowledge according to the epistemological Maxim: from the old knowledge, the new is fundamentally not deducible. In this regard, the author substantiates the heuristic possibilities of a complex methodology. It is a complex, contextual methodology that allows, firstly, to obtain a qualitatively new knowledge about the object of a private theory; and, secondly, a complex methodology allows us to count on the fact that the knowledge obtained as a personal knowledge thanks to the subject of the study, legal and related state reality are able to be expressed and framed in lexical constructions the knowledge obtained, nevertheless, meets the criterion of objectivity. An illustrative example is the private theory of public law status, which is characterized in the context of epistemological criteria, namely: object, subject, empirical and regulatory framework, philosophical and ideological grounds and, of course, complex methodology.

scholarly journals Cryptocurrencies and blockchain – challenges and threats

2021 ◽  
Vol 1 (1) ◽  
Author(s):  
Kamil Jurczyk
Keyword(s):  
Critical Analysis ◽  
Daily Life ◽  
Legal Aspects ◽  
Economic Life ◽  
The Other ◽  
Digital Currency ◽  
Blockchain Technology ◽  
The World ◽  
The Subject ◽  
Descriptive Method

In recent years, one of the most frequently discussed aspects in the world of economics has been the use of blockchain technology in economic life and the growing popularity of cryptocurrencies. Both blockchain and cryptocurrencies have incredible potential, and it is only a matter of time before they become part of daily life. The world's largest companies regularly invest in projects related to cryptocurrencies and blockchain. On the other hand, some countries have decided to ban all private cryptocurrencies and instead develop their own concepts of a digital currency issued by a central bank. This paper aims to discuss the issues related to the potential and threats posed by the development of cryptocurrencies and blockchain technology. The analysis involves technical, social and legal aspects linked to the development of virtual money. All the considerations in the paper are based on a critical analysis of the literature on the subject and the descriptive method.  

Philosophy of law

2021 ◽  
Author(s):  
Gennadiy Pracko
Keyword(s):  
Graduate Students ◽  
Academic Discipline ◽  
History Of Philosophy ◽  
Philosophy Of Law ◽  
History Of ◽  
Legal Thinking ◽  
The Subject ◽  
The Relationship

This textbook is devoted to the consideration of the philosophy of law as a scientific and academic discipline. The author, presenting the material of the textbook on the generalization of the concepts of philosophy of law, cultivated by modern research, offers its own approach to considering a number of its problems, which are debatable and have not yet found a generally accepted solution. Among them are problems the subject of philosophy of law and its methodology, the essence of law and modern approaches to legal thinking, the relationship between law, power and justice. This explains the conceptual differences in the presentation of the history of philosophy of law, presented in the tutorial. Recommended for students, undergraduates, graduate students, teachers and research associates of legal and philosophical faculties of universities.

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