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O pravima sa kojima smo rođeni

Author(s): Todor Kuljić / Language(s): Serbian Issue: 1/2017

The natural law is a overempiric law that does not owe his dignity to the legal norm than to the intrinsic qualities of a human being. This paper presents a different hierarchical position of the natural law in the critics of capitalism from K.Marx to our days and its different intonation as a superpositive framework of justice. One should analitically differentiate between (1) theoretical search for social justice in the philosophy of the natural law (K.Marx, M.Weber, G.Radbruch, L.Strauss, E.Bloch, Lj.Tadić) and (2) empirical identification of power relations that allowed or hindered social justice in the reality. The paper provides analysis of historically different relationships between positive and radical natural law in both the compressed 20th century epochal concience and today’s neoliberal one. In addition, it compares role of the natural law in capitalism and socialism and differentiates between social justice from above and social justice from below. The first one is gratuitous, paternalistic and limited, the second one is radical and has to be conquered. Radical natural law should express itself as a fully developed social justice liberated from capitalism. Critic of social unjustice from the viewpoint of natural law has no practical effects in our days, and in spite of it, it is not anachronistic.

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SŁOWO WSTĘPNE

Author(s): Bartosz Liżewski / Language(s): Polish Issue: 26/2015

W dniu 18 czerwca 2013 r., na Wydziale Prawa i Administracji UMCS odbyły się I Międzyuczelniane Warsztaty Filozofii Prawa i Ochrony Praw Człowieka. Organizatorami warsztatów była Katedra Teorii i Filozofii Prawa WpiA UMCS w osobach prof. dr hab. L. Leszczyńskiego i dr B. Liżewskiego oraz Katedra Teorii i Filozofii Prawa WPPKiA KUL reprezentowana przez dr. J. Potrzeszcz i ks. dr T. Barankiewicza.

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ПРИРОДА ЈУРИСТИЧКОГ ЗАКЉУЧКА

Author(s): Saša B. Bovan / Language(s): Serbian Issue: 2/2013

The paper examines the problem of the nature of judicial conclusion, starting from the premise of the factual position. Therein, the hypothesis is tested which underlines that the smaller premise has a more complex structure than it seems at a glance, i.e. apart from asserting and qualifying the facts, its structure embodies an explanation of facts which link these two aspects of the premise of factual situation. The explanation of facts is a dimension of the small premise which fundamentally determines the nature of the judicial conclusion, i.e. points to the fact that legal reasoning has at the same time a logical, theological but also a causal nature (legal reasoning as tehne, phronesis and episteme). As a consequence of this approach follows a conclusion that the procedure of qualifying the facts has predominantly an inductive character, meaning that the substance of a general legal norm is „filled“ starting from the factual situation. This view corresponds with the constructive theory of interpretation which stresses that interpretation is not only revealing but also forming the meaning (valuation on the basis of a relevant context).

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System prawa w ujęciu teoretycznoprawnym

Author(s): Leszek Leszczyński / Language(s): Polish Issue: 1/2017

Paper’s aim deals with defining the role of the category of the system both in the essence of the law and in its implementation and interpretation. The course of deliberations starts with the notion of the legal system, being followed by the analysis of basic dimensions of the systemic analysis of law (systematization of the normative acts as well as vertical and horizontal structure of law) and of the role of the systemic (both structural and axiological) rules of the legal interpretation conducted in the process of the application of law. The results of these considerations are then confronted with the various divisions of the legal system, taking especially the position of the administrative law into account.

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CONTRA LEGEM ЈУДИЦИРАЊЕ – ПАНДОРИНА КУТИЈА ПРАВНЕ ХЕРМЕНЕУТИКЕ

Author(s): Saša B. Bovan / Language(s): Serbian Issue: 2/2012

The author examines the relation between the reality of contra legem decision making and the necessity for a methodical articulation of this form of judicial work. Contra legem decision making is analyzed as a method of the least painful and the most rational dealing with the value based discrepancies, which derive from the instances of relatively similar social relations being regulated differently. The author offers examples of the contra legem decision making of the Supreme Cassation Court of Serbia.

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КЕЛЗЕНОВ ПАРАДОКС

Author(s): Saša B. Bovan / Language(s): Serbian Issue: 2/2009

Antinomical character of Kelsen’s Pure theory of law is best described with a syntagm – consistent idealistic eclectism. This qualification encompasses a rich philosophical and scientific background of Kelsen’s normativism, but also the controversy of Kelsen’s work which deserves to be regarded as paradoxical. This paper researches deeper into these controversies, i.e. Kelsen’s wondering and intellectual split between science and philosophy, through a more complex insight into the socio-historical context and the ideological climate that influenced his creative work.

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AN EARLY CRITIQUE OF KELSEN`S PURE THEORY OF LAW: SLOBODAN JOVANOVIĆ ON THE BASIC NORM AND PRIMACY OF INETRNATIONAL LAW

Author(s): Boris Z. Milosavljević / Language(s): English Issue: 3/2013

The keystone of Kelsen’s Pure Theory of Law is his doctrine of the basic norm. The basic norm is therefore the subject of Jovanović’s critique of Kelsen’s entire theory. According to Kelsen, the basic norm precedes the authority of a state, since it is positioned between the factual social force, which establishes the authority of the state, and the state. According to Jovanović, there is neither the law without a state, nor a state without the law; hence neither can Kelsenian legal norm, perceived as a norm prior to the state, be a positive legal norm, but an abstract, natural law norm. Jovanović discusses and criticizes Kelsen’s solution to the problem of the relationship between national and international law, which depends on the establishment of the basic norm.

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CICERO ALS JURIST UND THEORETIKER

Author(s): Zdravko Lučić / Language(s): German Issue: 3/2010

Cicero’s entire opus carried out a great influence to the development of Roman law in different ways, and to the modern continental legal systems throught it. Not only his legal writing, but also his philosophical contribution enabled the basic Greek philosophical principles cosidering ius naturale to be integrated into the Roman way of legal reasoning. That idea made a latter impact in formation of positive law on particular issues, strenghting the concept of ius aequum. The author calls attention to parallelism and close relationship between Cicero’s rhetoric and jurisprudence. Particular attention is paid to the role of his rhetoric in developing judicial argumentation. According to Cicero, an orator was expected to be well informed in law, since the knowledge of ius civile was tightly connected to honor, gratia and dignitas, which are basic demands considering orator’s character and value of argumentation. Through analysis of Roman law, Cicero pays attention to a variety of legal systems existing within the Imperium Romanum. He also contributed on that ground to the formation and development of particular legal terms and institutions, so that study of his works helps in detecting interpolations in the legal sources. The author therefore concludes that Cicero is worthy of being seen as one of the most influential and important figures not only in ancient rhetoric, as he is usually percieved, but in law as well, particularly due to the firm and deep ties between the two disciplines that he mastered.

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CONTEMPORARY MULTIDISCIPLINARY LEGAL THEORIES AND THE “WORLD STATE”

Author(s): Gordana Vukadinović,Dragan Mitrović / Language(s): English Issue: 3/2009

The scientific nature of a theory or theories is tested for very different reasons, such as insufficiently developed methodological apparatus, obvious partiality and insufficiency, small probability, ethical unacceptability of the results, etc. The latest theories represent a special object of attention. Since there is a large number of various multidisciplinary legal theories today, only those most intriguing ones will be presented and commented upon, those that are used in order to communicate results that compel serious questioning of their scientific value or point at the goals which are contained in their deeper layers as less noticeable or undisclosed.

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THEORIZING THE DIFFUSION OF LAW IN AN AGE OF GLOBALIZATION: CONCEPTUAL DIFFICULTIES, UNSTABLE IMAGINATIONS, AND THE EFFORT TO THINK GRACEFULLY NONETHELESS

Author(s): David A. Westbrook / Language(s): English Issue: 3/2008

Coming to grips with the diffusion of law in an age of globalization requires multiple, rather incommensurate, imaginations of authority. In trying to understand present situations, and heroically presuming the adequacy of raw knowledge, the legal theorist must think from more than one stance, must adopt multiple imaginations. So most of us shift from one imagination to another, trying to make sense of the matter at hand. If we were to take the admittedly risky step of acknowledging that our thinking is polyphonic, that we dance among our incommensurate imaginations of the diffusion of law, and of globalization more generally, then the criterion of approval for social theory would not be descriptive completeness or even impeccable demonstration. Instead we should strive for a certain human gracefulness of response to the world in which we find ourselves.

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ПАРАЂИНСКО СЛОВО О ТОМИ ЖИВАНОВИЋУ

Author(s): Danilo N. Basta / Language(s): Serbian Issue: 1/2005

У нашој земљи има неколико вароши или мањих места који се могу поносити - а и поносе се - тиме што су се у њима родили великане наше правне мисли (правне науке, правне филозофије)...

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ПРАВО, МОРАЛ И ВРЛИНА

Author(s): Peter Koller / Language(s): Serbian Issue: 2/2005

In recent times, the concept of virtue has regained a prominent role in public discourse and in academic ethics as well. However, it has not yet been dealt with very much in contemporary political theory and legal philosophy. This paper aims at clarifying the relationships between law and moral virtues in two respects. First of all, there is the question as to whether and to what extent the law may urge its addressees to be virtuous by enforcing or fostering the respective character dispositions. The second question is whether and to what extent a well-functioning legal order is dependent on moral virtues of the citizens. As to the first question, the paper defends the widely shared view that a legitimate legal system must not enforce virtue and may foster them only to a limited extent.

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Leges imperfectae w prawie

Author(s): Jarosław Niesiołowski / Language(s): Polish Issue: XXXVIII/2017

The article is devoted to the phenomenon of leges imperfectae in law. The name and the associated normative solutions have a long tradition going back to the Roman times.However, the issue has not been subject to deepened researches and is considered to be marginal. The article presents views on this phenomenon presented in the polish legal studies. Regardless of the above, the subject of the analysis is both the nature of the statements which the legislator is using in case of leges imperfectae, as well as issues related to the concept of a legal sanction. The results of the research lead to the conclusion that the normativity of legislator’s expression, understood as the intention to have impact on the behavior of recipients, and the binding force have in contemporary law differential character and leges imperfectae should be located in the sphere of soft law, as a kind of directives, not deprived of the effective aspiration on the behavior of recipients. In case of leges imperfectae sanctions should be recognized linguistically, as a lack of announcement of legal sanctions on the basis of legislation. Analyses show, that the cause of leges imperfectae appearing in law may be an error in the field of law-making techniques, caused by forgetting to establish legal sanctions, as well as a rational action of legislator associated with the impossibility or inexpediency of providing legal sanctions. The inability of establishing legal sanctions will happen, for example, in constitutional law where an important role is played by even political sanctions. The futility of establishing legal sanctions can be observed in family and guardianship law. Due to the fact that marital relations as well as the relations between parents and children are a very delicate sphere of behavior, in which the legislator enters with a big moderation, taking into account the regulations from moral and religious rules related to this sphere. The futility of establishing legal sanctions will be present also in wider economic law because, as the experience has shown, the command and-control economy does not lead to the desired result.

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Особенности механизма правового воздействия

Author(s): Ekaterina Shcherbakova / Language(s): Russian Issue: 2/2017

The importance of studying law as one of the most efficient means of social control and regulation has been raised in the paper. Solving this problem requires understanding the mechanism by which law influences society and people. The aim of the study is to develop a concept of phased action of the mechanism of legal effect as of a separate and individual phenomenon of the legal reality. To achieve the aim of the study, the following research methods have been used: analysis, synthesis, and systematization. Legal effect has been considered as one of the most complex and little known phenomena in jurisprudence, i.e., in the theory of state and law, and distinguished from the similar legal category of legal regulation. The paper analyzes different views on the mechanism of legal effect. Thus, this concept has been defined. Its essence and characteristics have been revealed. Such characteristic of the mechanism of legal effect as dynamics has been discussed in detail. Various forms of legal effect have been analyzed. Furthermore, key elements in the structure of the concept under study have been investigated. The main phases of legal effect have been singled out. Their order and legal means used at each stage have been found.

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PRAVNA DRŽAVA I VLADAVINA PRAVA U AKTUELNOM TRENUTKU

Author(s): Dragomir Jovičić / Language(s): Serbian Issue: 09/2017

The term "legal state" is often regarded as a synonym or equivalent to the term "the rule of law". The notion of the rule of law arises in German legal theory, and the rule of law in Anglo-Saxon legal philosophy. The rule of law is the legal concept, that is, the doctrine according to which the activity of state power must be based on legal regulations, that is, the constitution as the highest legal and political act and, of course, laws, which ensures the protection of citizens from possible abuses and the state itself. In the rule of law, citizens have civil rights that they can endeavor to achieve, but they can protect them in the courts.

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O potrzebie rekonstrukcji instytucji wszczęcia postępowania podatkowego

Author(s): Jarosław Szatkowski / Language(s): Polish Issue: 1/2015

Pursuant to article 9 clause 2 of Ordinance of the President of the Republic of Poland on Administrative Procedure of 1928, persons which possessed so-called legal interest in the case, were entitled to participate in the administrative procedure as a party. Both in procedure initiated by the authority ex officio and initiated on their own demand. The essential and still unsettled question of this construction is: who is authorised by the law to establish the existence of that legal interest, and consequently who decides on the admission of the applicant to the proceeding. This issue has been transferred to the Tax Code of 1997 with the implementation of that scheme, without taking into consideration the legal specificity of the tax assessment, especially self-assessment, to the tax procedure. Furthemore, pursuant to the ontological system, presented by Roman Ingarden in his work Controversy over the Existence of the World, an object which is the initiation of the procedure is an event, not a thing, processes, purely intentional object or an idea. Tax procedural law does not distinguish and name various types of objects properly, which causes serious problems as to legal interpretation. The aim of this work is to give some basic legal and philosophical directions for the reconstruction of the institution of the tax procedure initiation.

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Era genetyki reprodukcyjnej. O spełniających się „proroctwach” Aldousa Huxleya

Author(s): Agata Breczko,Anetta Breczko / Language(s): Polish Issue: 1/2014

The paper presents the literary vision of „the power of medicine” as sketched by Aldous Huxley in his book Brave New World. Huxley created a futuristic image of society which reaches a state of complete organization and control of human procreation. In Huxley’s world humans are born as a result of in vitro fertilization and cloning. Human bodies, due to genetic selection, are produced for desired features of appearance and character, and the means of achieving universal happiness are appropriate pharmaceuticals. Artificial procreation as well as reproductive genetics anticipated by Huxley have become reality in the 21st century, implying several moral and legal dilemmas. In bioethical discussions questions emerge about the consequences of using new genetic technologies and the legal boundries of medical experiments on human bodies.

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Логічні аспекти аргументації в теорії і практиці права

Author(s): Tetiana Bondar / Language(s): Ukrainian Issue: 1/2008

The author of the article is researching the logical basis of argumentative discourse in the theory and practice of law and analyzing the logical aspects of argumentative activity in legal sphere.

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Prawa Platona – status quaestionis

Author(s): Dorota Zygmuntowicz / Language(s): Polish Issue: 53/2008

This paper is designed as an introduction to reading Plato’s Laws. It describes the different stands on the authenticity of the dialogue, the contentous issues about its date and editing, and some ancient references to the Laws. It shows also indirect influence on Western political and juridical thought, finally, some modern different, even contradictory approaches to the political philosophy of the Laws.

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Evolucija i širenje nadležnosti Zaštitnika građana kao nacionalne institucije za zaštitu ljudskih prava u Srbiji

Author(s): Marko M. Lazarević / Language(s): Serbian Issue: 18/2017

The subject of research in this paper is the analysis of the role and basic characteristics of the institution of the Protector of Citizens in Serbia as the national Human Rights institution. The paper presents a detailed analysis of the transformation of the ombudsman institution from the classic pu blic authority controller to the hybrid model, with added dimension of hu man rights protection, when this institution becomes the central body for the protection of human rights at the national level. By using different methodological methods, the subject of research is analy zed more closely, while sources and relevant theoretical material including scientific sources, available legal sources and parts of the ombudsman’s annual and special reports regarding his new role (protection and promoti on of human rights) are systematized. Based on the collected empirical data, the author points out the key advantages and disadvantages of the concept of national Human Rights institution. The aim of the paper is to give recommendations for increasing the efficiency in the work of the Protector of Citizens, based on the drawn conclusions, which consequently leads to the improvement of the quality of protection of human rights and civil liberties in Serbia.

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