scholarly journals Interpretation of jurisprudence and law in the doctrine of T. E. Holland

2021 ◽  
pp. 46-60
Author(s):  
Anton Mikhailovich Mikhailov
Keyword(s):  
Subsequent Development ◽  
Legal Positivism ◽  
Legal Doctrine ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Legal Method ◽  
Legal Science ◽  
Biographical Approach ◽  
The Subject ◽  
Key Aspects

The subject of this research is the legal doctrine of the leading representative of English legal positivism of the last quarter of the XIX – first third of the XX centuries of Thomas Erskine Holland. The article is dedicated to examination of the two key aspects of his concept – comprehension of the nature of jurisprudence as a science, and law as a type of social norm. Leaning on the classic work of the British jurist “The Elements of Jurisprudence” (1880), the author defines the understanding of jurisprudence and law, reveals the historical-cultural meaning of Holland's legal doctrine for the subsequent development of English jurisprudence. Methodological framework is comprised of the historical approach, elements of biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic, and elements of comparative-legal method. The scientific novelty lies in the fact that this article is first within Russian legal science to conduct the concept analysis of the key theoretical-legal definitions (jurisprudence and law) of T. Holland’s doctrine, as well as reveal the ideological interrelation between the views of the British jurist and the founders of analytical jurisprudence. The author also substantiates the position, according to which Holland's approach towards comprehension of the nature of jurisprudence as a science can be defined as dogmatic. T. Holland's contribution to the development of legal positivism consists in argumentation of the formal and analytical nature of legal science, as well as in carrying out gradual differentiation of positive law from natural and social norms, and analysis of the crucial theoretical concepts of legal science.

scholarly journals From Apology to Utopia and the Inner Life of International Law

2016 ◽  
Vol 29 (3) ◽  
pp. 641-666 ◽  
Author(s):  
AKBAR RASULOV
Keyword(s):  
International Law ◽  
Significant Contribution ◽  
Legal Theory ◽  
Legal Positivism ◽  
Legal Practice ◽  
Inner Life ◽  
Legal Science ◽  
The Subject

AbstractA certain body of mythology has emerged in recent years around Martti Koskenniemi's From Apology to Utopia (FATU). At its heart lies a group of received wisdoms that tell us that FATU should essentially be considered a work of postmodern scholarship, that it provides a typical illustration of the so-called deconstructivist approach, and that its single most significant contribution to the field of international legal theory lies in its discussion of the subject of legal indeterminacy. In this article, I seek to challenge and displace this set of narratives, by excavating and restoring to the surface FATU's original intellectual project: a highly ambitious attempt to revive the traditional enterprise of ‘legal science’ by marrying Kelsenian legal positivism with Saussurean structuralist semiotics. In doing so, it succeeded in developing a set of analytical idioms and reasoning protocols that gave the international law profession not only a reason but also the necessary intellectual materials to revolutionize its day to day understanding of the essential character of international legal practice. Thus, far from being a manifestation of any kind of postmodernist sensibility, FATU, I am going to argue, represents, in fact, the exact opposite of it.

Methodological Problems in Comparative Law

1972 ◽  
Vol 7 (4) ◽  
pp. 465-474 ◽  
Author(s):  
K. Zweigert
Keyword(s):  
Comparative Law ◽  
Legal Rule ◽  
Legal Method ◽  
Legal Science ◽  
Legal Thinking ◽  
Methodological Problems ◽  
The Subject

The methodical aspects of comparative law is a field which has, up to now, hardly been cultivated systematically although probably more so in Israel than in some other countries.The subject normally evokes the question whether comparative law is a legal technique, a method of legal thinking, or an autonomous discipline of legal science, a field of law in its own right. I do not intend to deal with this problem because I think the effort will yield little. Any possible answer I would suggest, is true only to some extent depending on the context: if, for example, comparative law is used for the interpretation of a legal rule, it certainly belongs to the method of interpretation and thus lies in the field of legal method; if a special course in comparative law is taught to introduce students to its techniques and its basic premises, you may properly regard it as a discipline of its own.

scholarly journals Science of the encyclopedia of law in the writings of German jurist Daniel Nettelbladt

2020 ◽  
pp. 76-84
Author(s):  
Oleg Konstantinovich Slobozhaninov
Keyword(s):  
German Idealism ◽  
Legal Concept ◽  
Theoretical Concepts ◽  
Historical School ◽  
The Core ◽  
Legal Science ◽  
Comprehensive Examination ◽  
The Subject ◽  
The Concept Of Law ◽  
Core Idea

 The subject of this research is the identification of legal views of the German jurist Daniel Nettelbladt – a bright representative of science of the encyclopedia of law at the stage of its conception as a science. The source base is comprised of the works of D. Nettelbladt and scientific writings of other legal scholars. The historical legal science does not pay due attention to the ideas and persona of Daniel Nettelbladt. Although, the Russian legal science lacks the monographic research of the political-legal concept of D. Nettelbladt, his scientific writings became the foundation for the Russian and German jurisprudence of the mid XVIII – first quarter of the XIX centuries, until the beginning of the triumph of German idealism (Kant, Hegel) and historical school of law (Hugo, Puchta, Savigny). The scientific novelty is substantiated by the subject and methods of research. The works of Daniel Nettelbladt have not been previously subjected to systemic and comprehensive examination, but his ideas and concepts retain their relevance. The core idea of Daniel Nettelbladt’s encyclopedia of law consists in interpretation of science as a natural law from the rationalistic perspective. He introduced the original theoretical concepts. The author examines the concept of law, jurisprudence, legal system in the context of scholar’s perception. The significance of D. Nettelbladt’s persona and contribution to the development of science of the encyclopedia of law is underlined.

scholarly journals To the question on philosophical-methodological foundations of English legal positivism of the XIX century (legal teachings of J. Bentham and J. Austin)

2020 ◽  
pp. 57-73
Author(s):  
Anton Mikhailovich Mikhailov
Keyword(s):  
Legal Positivism ◽  
Legal Doctrine ◽  
Historical School ◽  
Xviii Century ◽  
Modern Age ◽  
Logical Paradox ◽  
The Subject ◽  
Legal Concepts ◽  
Xix Century ◽  
The Impact

The subject of this research is the  aggregate of philosophical ideas and methodological paradigms that underlie the concepts of the “first” legal (statist) positivism in England of the XIX century. The author traces the impact of certain philosophical trends and legal concepts of the XVIII – early XIX centuries upon the philosophical and methodological foundations of the positivist concepts of J. Bentham and J. Austin. The article describes the influence of social atomism, and exploratory rationality of Modern Age upon the “first” legal positivism of philosophical rationalism of the XVIII century. The impact of such philosophical and legal concepts as nominalism, the historical school of lawyers, and philosophical positivism of A. Comte upon the “first” legal positivism was reconstructed. The scientific novelty consists in reconstruction of the influence of an entire number of philosophical and legal ideas and concepts upon the development of “first” legal positivism. Correlation between the legal doctrine of J. Bentham, philosophical concepts of the XVIII century, and the legal teaching of T. Hobbes is underlined. The author draws the ideological parallels between the philosophical nominalism, logical paradox of D. Hume, and legal doctrines of J. Bentham and J. Austin. The author reveals the key “channels” of the impact of German Historical School upon legal positivism, describes the similarities and differences between the scientific positivism of A. Comte and the concepts of legal positivism of J. Bentham and J. Austin. The philosophical-methodological framework of the concepts of “first” legal positivism were subjected to a significant influence of the methodological paradigm of philosophical rationalism, social atomism, exploratory scientific rationality of Modern Age, and nominalism.

E. V. Vaskovsky as Representative of Legal Positivism in Domestic Legal Science

2016 ◽  
Vol 4 (8) ◽  
pp. 0-0
Author(s):  
Сергей Липень ◽  
Syergyey Lipyen
Keyword(s):  
Subject Matter ◽  
Legal Positivism ◽  
Judicial Discretion ◽  
Public Authorities ◽  
Legal Science ◽  
Basic Meaning ◽  
History Of ◽  
Training Courses ◽  
The Subject ◽  
Main Ideas

The article presents the views of E. V. Vaskovsky (1866-1942) on the problem of a ratio of legality and a discretion in law-implementing, as well as other problems of legal science. The scholar was a consistent advocate of legality, consistent supporter of one of the main ideas of legal positivism. Other ideas relating to this scientific trend were reflected in the works of E. V. Vaskovsky. These ideas are: the limitation of the subject matter of the formal-dogmatic legal science, understanding of law as a set of compulsory norms emanating from public authorities, the basic meaning of a normative legal act in the system of sources of law, critical attitude to new theories of interpretation of law, limits of judicial discretion, etc. The value of views of E. V. Vaskovsky in the development of legal positivism must be taken into account and employed by scientific researches and used in training courses on the history of political and legal doctrines.

scholarly journals To the question of systemic errors in the interpretation of law in connection with the problem of the object of legal science

2021 ◽  
pp. 66-71
Author(s):  
M. I. Miroshnichenko
Keyword(s):  
Natural Law ◽  
Social Practice ◽  
Logical Structure ◽  
Spiritual Needs ◽  
General Interest ◽  
Negative Consequences ◽  
Legal Doctrine ◽  
Legal Method ◽  
Legal Science ◽  
Legal Understanding

In the proposed article, the author tries to prove that the important reason for the existence of systemic errors in the interpretation of law is directly related to the problem of understanding the object of legal science. The research was conducted within the framework of a systematic approach by the method of logical analysis. The author’s understanding of the object of legal science is highlighted, its logical structure is revealed. The connections between the structural elements have been established and the dependence of the appearance of systemic errors in the interpretation of the law on one or another scientific interpretation of this connection has been clarified. It is emphasized that among all known ways of interpreting law in the paradigm of different types of legal understanding, the marker of the presence or absence of systemic errors in the interpretation of law is a special legal method of interpretation based on special legal factors: a) features of legal understanding; b) the dominance in the legal science of a particular society and in a particular historical time of certain legal doctrines, views, theories on the essence of law, its functional role in society; c) features of legal practice; d) levels of development of legal reality. A hypothetical judgment is made that the solution of the issue of avoiding systemic errors in the interpretation of law should be carried out within the framework of the problem of the main issue of jurisprudence. Accordingly, the notion of law enshrined at the level of official legal doctrine should be used, which would reflect the objective trends of legal development of mankind in accordance with the laws of natural law and universal legal values formed at the intersection of material and spiritual needs of society. The author’s definition of the following concept is proposed: law is an objectively determined, rationally substantiated through a slice of general interest system of principles, institutions, norms, rules of conduct verified by social practice (which in systematic interaction do not contradict the requirements of morality and actions of the laws of natural law), the functioning and implementation of which are associated with government institutions that have a recognized right (privilege) to exercise coercion. A special vector of consideration is devoted to doctrinal legal errors, examples of negative consequences for the state, society due to systemic errors in the interpretation of law are given. Keywords: error, legal error, system errors of interpretation of law, precautionary measures.

scholarly journals Principles of Positivist Jurisprudence in the Teachings of Warsaw Lawyers of the First Third of the XIX Century

2021 ◽  
pp. 113-129
Author(s):  
Oleksiy Kresin
Keyword(s):  
A Priori ◽  
Society Of Friends ◽  
Central European ◽  
The Core ◽  
Legal Thought ◽  
Positive Law ◽  
Legal Science ◽  
The Subject ◽  
Xix Century ◽  
The University

The article is devoted to the extremely rich and insufficiently studied heritage of Polish legal thought. The political and geographical determinants of the chosen research topic are the restoration of statehood in central Polish lands in 1807 (Duchy of Warsaw and the Kingdom of Poland) and the defeat of the November Uprising (1830-1831) followed by measures taken by the Russian authorities to limit the autonomy of the Kingdom of Poland. The intellectual milestones are the founding of the School of Law in 1807 (later the Faculty of Law of the University of Warsaw), and the closure of the University of Warsaw in 1831, as well as the significant emigration of scientists in the same year and the liquidation of the Society of Friends of Science in 1832. The intellectual milestones are also European (and first of all Central European) processes of legal thought evolution in the second half of the XVIII – first third of the XIX century, which led to the formation of the first and still insufficiently understood and studied positivism in jurisprudence, being a profound phenomenon that reveals the essence of positivism in legal thought in general. The study found that the basic principle of jurisprudence in the vision of most Warsaw scholars during the study period was its independence from a priori and metaphysical philosophizing, and vice versa, the formation of its own philosophical and legal discourse (philosophy of positive law) based on generalization and understanding of research results. It was recognized that legal science should be a fundamentally new system of legal knowledge – positivist and social. Recognizing the historical and modern pluralism of such an organization of knowledge, Warsaw scholars have unequivocally identified themselves with the Central European jurisprudence, the core of which is the German. Warsaw scholars believed that jurisprudence was based on historical, dogmatic and philosophical approaches. Accordingly, they considered three relatively separate areas of scientific knowledge, which together can be considered as a single legal science or a system of interrelated legal sciences. Depending on the emphasis in the views of scholars on the fundamental or applied side of legal science, this system was seen differently, as well as the subject of jurisprudence – universal or more national. It can be argued that this to some extent correlated with the predominance in the views of certain scholars of the principles of historical-philosophical or historical schools.

Telling Diaspora Stories: theoretical and methodological reflections on narratives of migrancy and belongingness in the second generation

2009 ◽  
Vol 6 (2) ◽  
pp. 143-153 ◽  
Author(s):  
Anastasia Christou
Keyword(s):  
Life History ◽  
Second Generation ◽  
Life Stories ◽  
Narrative Research ◽  
Social Experiences ◽  
Biographical Approach ◽  
The Subject

This article explores the theoretical and methodological implications of the study of second generation migration through the use of life stories, a narrative and biographical approach. It presents a theoretical contextualisation of life history research in addressing the direction it has taken in the study of migration and identity in order to problematise how the subject and subjectivities in narrative research have been framed by social categorisations such as gender, ethnicity, class as well as social experiences such as trauma, exile, memory and imagination. The paper develops the analytical contribution of researching the biographicity of everyday migrant lives. 

Crimes against marriage and family before Criminal Code 1968

2020 ◽  
Vol 15 (1-3) ◽  
pp. 44-59
Author(s):  
Lidia Peneva
Keyword(s):  
Criminal Code ◽  
Point Of View ◽  
Marriage And Family ◽  
Historical Method ◽  
Legal Method ◽  
The Subject ◽  
The Republic ◽  
Criminal Groups ◽  
The Moment ◽  
Structural Point

Crimes against marriage and family are a particular group of social relation­ships that the law has defended properly in view of the high public significance and value they enjoy. At the moment they are regulated in Chapter VI, Section I, of the specific part of the Penal Code the Repub­lic of Bulgaria. The subject matter of this Statement will, however, be the legisla­tive provisions concerning these criminal­ized acts in retrospect. The purpose of the study is to show by historical method and through the comparatively legal method the development of these criminal groups during the periods of various criminal laws in Bulgaria. This will also provide a basis for reflection on possible de lege ferenda proposals. This report from a structural point of view will be divided into three distinct points, marking each of the penal laws in the Republic of Bulgaria, which were in force before 1968.

scholarly journals Fundamental Pedagogical Aspects for the Implementation of Models-Based Practice in Physical Education

2021 ◽  
Vol 18 (13) ◽  
pp. 7152
Author(s):  
Alejandra Hernando-Garijo ◽  
David Hortigüela-Alcalá ◽  
Pedro Antonio Sánchez-Miguel ◽  
Sixto González-Víllora
Keyword(s):  
Physical Education ◽  
Scientific Evidence ◽  
Effective Implementation ◽  
The Subject ◽  
Pedagogical Models ◽  
Improved Learning ◽  
Key Aspects ◽  
Traditional Approaches ◽  
Educational Field ◽  
Common Action

The implementation of pedagogical models (PMs) in the subject of Physical Education (PE) is presented as a pedagogical approach that is based on the educational context as a means to overcome the serious limitations that arise from traditional approaches. The effective implementation of this approach has demonstrated benefits in terms of student motivation, student involvement and improved learning. Thus, its application and international relevance, the variability of content covered, the possibility of replicability in a variety of contexts and the fact that it favors a reflective framework and common action by teachers are some of the reasons that justify its use. In this sense, the need for teacher training, as well as the intention to generate more scientific evidence based on its application in the classroom, are some of the key aspects to be taken into account for its implementation and consequent consolidation in the educational field.

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