Philosophy of Law and General Theory of Law
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Published By Yaroslav Mudryi National Law University

2227-7153

Author(s):  
Petro Rabinovych ◽  
Pavlo Myrtsalo

The article examines some modern trends in the development of domestic legislation, as well as general theoretical legal thinking. One of them is a noticeable spread in the legislative acts of Ukraine of those terms that have an outlet to the problem of legal understanding, for example, they talk about such words as: «right», «justice», «unjust sentence», «unright agreement», «unright use», «unright actions», «unright gain». Such terminology can be directly used in legal regulatory practice, and taking into account the pluralism of legal thinking, known from ancient times to this day, inevitably there is a need for an official explanation, interpretation of one or another of the given terminological concepts. In all the above cases, the following question will inevitably arise: the terms above are synonyms for the adjectives lawful, illegal, and are similar to them? Or, on the contrary, in the examples given above, they are talking about some other – meaningful and different – from legal / illegal – phenomenon? If we are inclined to the first answer, the question arises: for what purpose different terms were used to name the same phenomenon? If we support the second of the possible answers, then it directly leads to the problem of legal thinking. One of the aspects of the general problem of legal thinking is the substantive allocation of the so-called phenomenon of the antipode of the phenomenon of right, – the phenomenon of unright. The urgency of solving this practically significant task is illustrated, in particular, by the fact that, for example, in the current Criminal Code of Ukraine, adjectives unright gain are used almost sixty times! What complex of problems in legal regulation, this situation generates, can be seen by analyzing, for example, the reaction of the Constitutional Court of Ukraine regarding the inconsistency of the Constitution of Ukraine with the provisions of Art. 375 of the Criminal Code of Ukraine. Arguing this decision, the Constitutional Court of Ukraine referred to the fact that, in particular: a) formulation of this article allows possibility of abuse by the bodies of pre-trial investigation, in connection with legal clarity, unambiguity in content of the norm is lost when they are applied; b) the situation under discussion creates the possibility of an official assessment of the court decision by non-judicial bodies, which contradicts the principle of the distribution of power. It seems remarkable that in response to the aforementioned decision of the Constitutional Court of Ukraine, almost half of those judges who took part in the consideration of this case expressed separate opinions in which they thoroughly criticized the arguments of the Court. Without resorting to a specific analysis of each of these thoughts, we state the pluralistic interpretation of the first part of the complex word «unjust» by different judges of the Constitutional Court of Ukraine. We explain it by the socially-natural heterogeneity, the interpretation of any evaluative legal concepts by various subjects of society in the process of legal regulation.


Author(s):  
Csaba Varga

As to the conceptualisation of any one institution, the apparently identical notional term can cover four types of institutional systems: (1) the actually existing concrete system, which is a unit that functions as it is (e.g., constitutional system of liberalism as practised in a given area in a given time, e.g., in the United States nowadays); (2) the historically developed concrete system which is a unit that functions as it has been (e.g., constitutional system of liberalism as practised in a given area in a given period, e.g., in the United States since the time it developed); (3) the generalisation of the historically concrete systems as developed in our civilisation (e.g., the constitutional system of liberalism as known and practised in our civilisation); and (4) the core idea of the functioning underlying all kinds of generalisation (e.g., the abstract universal formulation of the ultimate principles of operation, of which the constitutional system of liberalism is but one of the theoretically possible forms of realisation). Within a quasi monographic analysis of them, both their role as a normative ideology and their actual objectivity and contingency are treated.


Author(s):  
Olexander Lytvynov

The aim of the article is to continue the study of law as a cultural phenomenon, in this case as an introduction to the problems of the XXVIII World Congress on the Philosophy of Law and Social Philosophy “Peace Based on Human Rights”. It is offered as an opportunity for additional substantiation of the idea of eternal peace (I. Kant) from the position of a culturological approach as one of the methodological tools of the philosophy of law. The concept developed by the author makes it possible to appeal to the ideal structures of consciousness not only in a purely epistemological aspect and phenomenological context, but also based on the ontological foundations of moral and legal culture. Thus, it becomes obvious and necessary to distinguish between anthropological and culturological approaches to substantiate the removal of the very concept of war beyond the boundaries of culture into the sphere of the unacceptable, what qualifies as a crime. Such a process of human development as a cultural development is natural in the sense of acquiring proper human qualities – it is overcoming the animal component of man (Aristotle and others). The philosophical and ideological foundations of this direction of development are the concepts that have received legal formalization primarily in the concept of human rights. The cultural form of overcoming the animal (in the cultural sense – criminal) principle in a person is play, which has found embodiment in various forms of agonal interaction, primarily in sports, as well as in art. Law as a formulation of the rules of cultural interaction becomes a necessary condition for survival, and the extension of this (culturological) principle to humanity (as a common destiny) makes the anthropological approach, in the form in which it is interpreted in modern (domestic) jurisprudence, limited and partial not only in a logical, but also in a humanitarian sense. The necessity of understanding the logical correlation of the concepts of “privilege” and “social parasitism” with the concept of “war” is shown. The transfer of “war” (regardless of interpretations and definitions) beyond the boundaries of culture (or truly human relationships) becomes necessary, as well as understanding the role of law in ensuring such a state of humanity.


Author(s):  
Piotr Szymaniec

Israeli scholar and judge, Aharon Barak rejects the position that dignity is an axiomatic, universal concept. Moreover, he is in favor of “spacious” understanding of the right to dignity, making it a vast and broad category. The aim of the paper is to examine whether the concept of dignity presented by Barak is useful to understand the approach to human dignity as a legal concept in those Central European legal systems which have been influenced by German constitutional theory. In that regard the jurisprudence of Polish Constitutional Court is examined. The author is not fully convinced by Barak’s approach to dignity.  The conclusion is drawn, however, that Barak is right when claiming that the status of an absolute right granted to the right to dignity means also that its scope is defined in a restrictive way.


Author(s):  
Natalia Satokhina
Keyword(s):  

Review of the All-Ukrainian round table “Fundamental problems of jurisprudence II. Law and Unlaw”, which took place in Kharkiv in September 2020.


Author(s):  
Tamara Dudash

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.


Author(s):  
Boris Gulko
Keyword(s):  

Review of O. V. Gryshchuk’s monograph “Constitutional Values: Philosophical and Judicial Aspects” (Gryshchuk, Oksana. Constitutional Values: Philosophical and Judicial Aspects. Monograph. 2nd edition revised and supplemented. Kyiv: Baiтe, 2020).


Author(s):  
Rafael Magdaleno
Keyword(s):  

This article tackles the issue of determinism in Leibniz. In particular, it is a matter of investigating how the problem of the labyrinth of freedom and need is elaborated in “Discours de Métaphysique” and developed in “Monadologie”. We have tried to demonstrate that the solution outlined by Leibniz, i.e., the exit from this labyrinth, is what liberates the political and moral practice in the author’s work. This practice is related to the possibility for men to think of the issue of justice, i.e., the issue of the science of Law.


Author(s):  
Volodymyr Sushchenko

The article is devoted to the theoretical foundations of the category of “responsibility” of philosophy and ethics, as well as its interpretation in psychology and jurisprudence. The author analyzes the category of “responsibility” in the context of etymology (origin) of this term in Ukrainian, Russian, English, French and German languages, while emphasizing their semantic similarity/identity. On the base of the analysis of scientific sources, an attempt was made to take a multidisciplinary approach to the interpretation of this category in jurisprudence in order to better and The article is devoted to the theoretical foundations of the category of “responsibility” of philosophy and ethics, as well as its interpretation in psychology and jurisprudence. The author analyzes the category of “responsibility” in the context of etymology (origin) of this term in Ukrainian, Russian, English, French and German languages, while emphasizing their semantic similarity/identity. On the base of the analysis of scientific sources, an attempt was made to take a multidisciplinary approach to the interpretation of this category in jurisprudence in order to better and 


Author(s):  
Yulia Razmetaeva

The article focuses on issues of autonomy, simplification and polarization, illusions and expectations in the digital age. The analysis is based on two trends: (1) frustration and loss of illusions about fundamental values ​such as human rights, justice and the rule of law; (2) immersion in artificial, illusory worlds that create a misperception of reality in private and public spheres of life (this is especially evident in the digital space). The article highlights how both trends are associated with deep injustice and blatant «non-law», as well as almost invisible attacks on justice and the disappearance of law. It is established that the uncertainty and unpredictability of the consequences of many actions in the digital environment, as well as the use of digital tools are rather subtle attacks on autonomy and justice. At the same time, autonomy is threatened by direct and indirect influence of various actors, which leads to simplification of perception, polarization of thoughts, radicalization of views and actions of individuals and groups. The degree of freedom that individuals have today could be difficult to determine or they would have a misconception about how free they are in their actions, thoughts, and choices. Falsely secure illusory worlds, digital identity, information asymmetry, significant imbalance between the interests of the main beneficiaries of digital technologies and their consumers – all this undermines the human capacity for free judgment and free choice and strengthens disbelief in law, including its key elements, especially, human rights.


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