Dialectical Approach to Legal Arguing and Legal Argumentation

The article is devoted to legal argumentation, namely to its research by dialectical approach. The aim of the article is to determine characteristic features of dialectical approach to legal argumentation. Dialectical approach to the research of legal argumentation should include philosophical, theoretical, empirical components. Philosophical component of legal argumentation research consists in the critical conception of rationality i.e. the philosophical axiomatic idea about rationality of legal argumentation, which is systematically tested within discourse or critical discussion. Dialectical theoretical model of legal argumentation ensures mutual acceptability of legal argumentation by the parties. Dialectical approach deals with legal argumentation mainly in the “context of justification.” Dialectical approach to legal arguing implies specific standard of soundness of the argumentation – acceptability standard. Empirical component of legal argumentation includes reconstruction of argumentation and its weighting (analytic component) as well as analysis of particular legal reasoning (practical component). Dialectical approach highlights hermeneutical nature of legal reasoning. Dialectical approach to legal argumentation lets us assume some ontological issues concerning legal argumentation. Legal argumentation is considered as the form of rational communication of particular persons to reach mutual acceptability of legally important conclusions within the procedure of discussion. Legal argumentation is the result of such impact embodied in acceptability of legally binding issues within the procedure of rational discussion.

The Ideal Dimension of Law

The main theme of the article is ideal dimension of law. Author argue for a dual nature thesis – which contends that law necessarily comprises both a real or factual dimension and an ideal or critical dimension – and demonstrates how the ideal dimension (which refers primarily to moral correctness) implies the truth of non-positivism. The key provisions of the conception represented in article are substantiated in a polemic with other well-known representative of non-positivism – John Finnis. Particular attention is paid to determine relation between the real and ideal dimensions of law, which involves answering five questions. First, is there an outermost border of law? Second, is legal argumentation based exclusively on authoritative reasons or does it also include non-authoritative reasons? Third, what is the relation between human rights and legal systems? Forth, is democracy to be understood exclusively as a decision procedure or also as a form of discourse? Fifth, do legal system comprise only rules expressing a real “ought” or also principles expressing an “ideal ought”? These five questions are answered by the following five theses: the first with the Radbruch formula; he second with the special case thesis; the third with the thesis that constitutional rights are to be understood as attempts to positivize human rights; the fourth with the deliberative model of democracy; and the fifth with principles theory. All five theses turn on the same point: the claim to correctness.

Compensazione del danno (timoria) e giustizia come reciprocità nella demostenica Contro Midia, sul pugno

This article offers an analysis of the legal arguments that Demosthenes uses in his speech Against Meidias, concerning the punch to prove that Meidias, who had struck Demosthenes as he exercised his public functions as a choregos, is guilty of hybris, and that he (Demosthenes) deserves adequate (i.e. public) reparation for the outrage suffered. Demosthenes claims his right to a punishment (timoria) capable of repairing the collective, more than individual, damage. This claim appears to allow him, on the one hand, to legitimise, with effective legal argumentation, all the choices made in the aftermath of the episode of the punch, and on the other, to give a strong legal basis for requesting the death penalty for Meidias. The paragraphs 2-3 of the article deal with the choices Demosthenes made after the episode of the punch. Here I intend to show that Demosthenes is able to demonstrate to the judges the relevance of the procedural choices and to qualify them as ‘choices’ precisely because they were motivated and considered at length. In the following paragraphs of the article I discuss the legal argumentation that Demosthenes uses with regard to the ‘measure’ of the penalty required (the death penalty). The aim is to understand what roles the principle according to which Meidias’s hybristic conduct must be assessed from an overall view and the principle of justice as reciprocity play in this argument. The latter must take into account the merit of the epieikes Demosthenes as compared to the hybristes Meidias.

Sanksi Pidana Bagi Kegiatan Mereview Suatu Produk Usaha di Media Sosial Tanpa Izin

In the competitive world of business, one effective way as a means of promotion is reviewing or reviewing products, which are activities carried out by consumers to give their impressions and views about a product so that it becomes a consideration for other consumers before buying the product, but there are negative impacts from this activity, namely if it is misused by irresponsible persons, what happens is that the person gives a bad image to business actors because of these activities and affects consumers who will buy the product. The purpose of this study is to analyze the sanctions that can be imposed from reviewing or reviewing a product that has copyright without permission from business actors. This study applies a normative method with a statutory approach. Data collection techniques were carried out by examining existing library materials. The sources of law used are divided into two, namely primary and secondary sources of law which are then analyzed by methods of legal interpretation, legal argumentation, and legal construction. The results of the study reveal that the activity of reviewing a product is also regulated through Article 27 paragraph (3) of Law 19 of 2016 concerning amendments to Law Number 11 of 2008 concerning information and electronic transactions aimed at protecting brands from good name numbers.

Pragmatism and Reconciliation: Czech-German Political Relations, 1989 – 1997

<p>This thesis charts the process of Czech-German political reconciliation between the years 1989 and 1997 asking, broadly, how Czech and German government representatives arrived at the 1997 Declaration on Mutual Relations and their Future Development. The argument focuses on two failed approaches to reconciliation. First, the search for historical truth in the belief that a shared normative assessment would itself dictate the necessary political and legal action, and second, the resort to legal argumentation in the context of international law. In 1989-1990, the foreign policy agendas of both Czechoslovak and German governments prioritised the speedy harmonisation of relations in a spirit of goodwill and optimism. However, a series of seemingly intractable legal disputes arose. Firstly, concerning calls for German compensation for Czech victims of Nazism, and secondly, calls from within the Sudetendeutsche Landsmannschaft, an organisation of German expellees, for the restitution of property and the right of return, supported by the German federal government. Both the Czechoslovak (later Czech) and German governments simultaneously utilised two competing legal paradigms reflecting the jurisprudential schools of legal positivism and natural law theory to both support their own arguments and refute those of the other, exhibiting a striking symmetry of selfinterested bias. Czech and German representatives disputed the legal status of the Munich Agreement of 1938 (by which the Third Reich partitioned Czechoslovakia), and of the Beneš Decrees of 1945 (collectively sanctioning the deprivation of citizenship and expropriation of Sudeten German property). Their differing interpretations had implications either strengthening or undermining the Sudeten German restitution claim in the 1990s. Neither government sufficiently abided by the intellectual ground rules of a necessarily rational process of inter-state negotiation, preventing a legal resolution. Analysing Czech-German relations through the lens of ‘failed approaches’ highlights the triumph of pragmatism, with surprisingly durable results.</p>

Pragmatism and Reconciliation: Czech-German Political Relations, 1989 – 1997

<p>This thesis charts the process of Czech-German political reconciliation between the years 1989 and 1997 asking, broadly, how Czech and German government representatives arrived at the 1997 Declaration on Mutual Relations and their Future Development. The argument focuses on two failed approaches to reconciliation. First, the search for historical truth in the belief that a shared normative assessment would itself dictate the necessary political and legal action, and second, the resort to legal argumentation in the context of international law. In 1989-1990, the foreign policy agendas of both Czechoslovak and German governments prioritised the speedy harmonisation of relations in a spirit of goodwill and optimism. However, a series of seemingly intractable legal disputes arose. Firstly, concerning calls for German compensation for Czech victims of Nazism, and secondly, calls from within the Sudetendeutsche Landsmannschaft, an organisation of German expellees, for the restitution of property and the right of return, supported by the German federal government. Both the Czechoslovak (later Czech) and German governments simultaneously utilised two competing legal paradigms reflecting the jurisprudential schools of legal positivism and natural law theory to both support their own arguments and refute those of the other, exhibiting a striking symmetry of selfinterested bias. Czech and German representatives disputed the legal status of the Munich Agreement of 1938 (by which the Third Reich partitioned Czechoslovakia), and of the Beneš Decrees of 1945 (collectively sanctioning the deprivation of citizenship and expropriation of Sudeten German property). Their differing interpretations had implications either strengthening or undermining the Sudeten German restitution claim in the 1990s. Neither government sufficiently abided by the intellectual ground rules of a necessarily rational process of inter-state negotiation, preventing a legal resolution. Analysing Czech-German relations through the lens of ‘failed approaches’ highlights the triumph of pragmatism, with surprisingly durable results.</p>

Diff erentiation of solutions in view of the public prosecutor’s supervision over preparatory proceedings in criminal and tax off ence cases based on selected provisions of the code of criminal procedure and the penal fi scal code from the perspective of good law characteristics

This article is an attempt to show the consequences of differences in regulations on Public Prosecutor’s supervision over proceedings as provided for by the Penal Fiscal Code and the Code of Criminal Procedure, from the perspective of good law characteristics. On the basis of selected regulations, the author attempts to demonstrate that the marginal supervision of the Public Prosecutor over the investigation in the penal fi scal proceedings as provided for in the legislation contradicts the clarity, coherence and effectiveness of law. The differentiation between solutions adopted in this respect gives rise to problems with normative regulations based on the Penal Fiscal Code and makes the regulations inconsistent with other legislation: the Act of 28 January 2016 — Law on the Prosecutor’s Offi ce and the Act of 17 June 2004 — on complaint regarding infringement of the party’s right to examine the case in preparatory proceedings conducted or supervised by a prosecutor and court proceedings without unreasonable delay. Further, in the content of the article the author refers to selected legislation applicable also to investigation regulated by the penal fi scal proceeding regulations. They serve as an example to demonstrate the thesis that the differentiation introduced in this respect in the legislation is entirely unreasonable as compared to the related regulations of the Code of Criminal Procedure. The analysis of those regulations proves that there is no system-related or legal argumentation that would justify this kind of exceptions. In the conclusions drawn on the basis of the analyses carried out in the article, the author states that the introduction of different regulations in the Penal Fiscal Code and the Code of Criminal Procedure as regards the Public Prosecutor’s supervision over the investigation conducted by the fi nancial authority responsible for preparatory proceedings and some exceptions in respect of investigations does not fulfi l the requirements of good law.

Freedom and inequality: On the problem of the history and philosophy of liberalism

The article is devoted to the study of the problem of the doctrinal identification of freedom and inequality by classical liberalism and neoliberalism. Identifying the features of the naturalistic and theological approaches to the manifestation of inequality in human communities, the author notes the philosophical justification of the legal argumentation of inequality in the theories of natural law and the social contract of modern thinkers. The appeal to the value dynamics reflected in the slogans of the French revolution of the 18th century allows the author to reveal the gradual displacement of the priorities of “Equality” and “Brotherhood”, which were put forward by the revolutionary democracy, by the liberal movements. The final statement of Locke’s version of the orientation of classical liberalism on the triad “Freedom. Property. Life”, according to the author, logically determines the identification of freedom with inequality, and equality with slavery by representatives of liberal circles. The development of the concepts of “social solidarity” by the theorists of neoliberalism, according to the author’s proof, does not change the liberal attitude to “freedom in inequality”. The analysis of the categories of freedom and inequality allows the author to formulate the contradictions of this provision. The article concludes that with the aggravation of the derived contradiction to the maximum, the risk of self-denial of liberalism increases.

The Dual Nature of Law

The argument of this chapter is that the dual-nature thesis is not only capable of solving the problem of legal positivism but also addresses all fundamental questions of law. Examples are the relation between deliberative democracy and democracy qua decision-making procedure along the lines of the majority principle, the connection between human rights as moral rights and constitutional rights as positive rights, the relation between constitutional review qua ideal representation of the people and parliamentary legislation, the commitment of legal argumentation to both authoritative and non-authoritative reasons, and the distinction between rules as expressing a real ‘ought’ and principles as expressing its ideal counterpart. All of this underscores the point that the dual nature of law is the single most essential feature of law.