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УСТАВ КАО ОСНОВНА НОРМА У ТЕОРИЈИ ПРАВА ХАНСА КЕЛЗЕНА

Author(s): Mira Simović / Language(s): Serbian Issue: 46/2005

In the opinion of Hans Kelsen's critics, the most sensitive issue in Kelsen's normative theory of law is the basic norm. It is considered to be the pivotal point where the entire normative theory is either sustained or falls apart. The author of this paper analyses the Constitution as the basic norm of the legal order by providing, in due course, a comparative analysis of the theoretical standpoints of the most eminent Serbian legal scholars and jurists: Slobodan Jovanovic, Dorde Tasic and Radomir Lukic.

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ПРИХВАТАЊЕ И ПРИМЕНА ЖЕНСКЕ ЕТИКЕ КАО БИТАН ЕЛЕМЕНТ ИЗГРАДЊЕ ПРАВНОГ СИСТЕМА РЕПУБЛИКЕ СРБИЈЕ

Author(s): Marko Trajković / Language(s): Serbian Issue: 49/2007

The acceptance and the application of female ethics is an important and unavoidable element of each ethical and legal system. A proper development of a legal system of the Republic of Serbia is inconceivable without accepting and applying the principles of female ethics. The problems encountered by every modern society are resolvable only by accepting and applying the ethics of care, as a prominently female perspective of reasoning and deciding on ethical questions. The aim of this paper is to eliminate any doubt in the existence of female ethics and the feasibility of its application in the legal system of a modern state of law. The author is of die opinion that only a contextual, pluralistic, inclusive, holistic, integration and hermeneutic approach to ethical thinking and reasoning is the ultimate adequate approach in developing an ethical and legal system. The contextual approach is likely to avoid abstract moral statements, which are difficult to apply in an ethical and legal system, and focuses on particular relations and correlations. The pluralistic and the inclusive approach value the diversity and difference, which is the foundation for a proper development of a legal system. The key aspect of all dominant governing ideologies is the belief in a single appropriate mode of existence, thinking and action. By imposing traditional gender roles, such ideology makes allowances for establishing the logic of domination and oppression of women at all levels of the legal system. The pluralistic and the inclusive approaches are aimed at renouncing the logic of domination in favour of a more distinctive approach in solving ethical and legal problems imposed by the present social and legal order. The ethics based on sound principles tends to avoid the creation of such hierarchy and domination, and glorifies diversity. The holistic and the integration approach perceive all the constituent elements of a legal system in a most proper way. In the hermeneutic approach, the norm opens to the fact; the male and the female ethics, in case we have accepted such a distribution of moral reasoning, may contribute to reaching a correct moral judgment in situations when we face moral dilemmas. As it is impossible to segregate the existence of a woman and a man in terms of the quality of life in a modern state of law, it is impossible to separate, hypothetically speaking, these two kinds of ethics. They are mutually connected, supplementing one another in the best holistic manner. Speaking about a real integration, this implies that we have to accept the possibility of a methodological rather than content integration. If we accept that these two methods or modes of moral reasoning, the ethics of care ant the ethics of the universal ethical principles, we are able to form relevant ethical viewpoints within the framework of the ethical and legal system.

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Mediation and the Judicial Type of the Application of Law. Context of the ‘Opening up’ of Decision-Making Processes

Author(s): Leszek Leszczyński / Language(s): English Issue: 3/2018

Paper’s aim deals with the analysis of the features of mediation (treated as a way of solving the legal problems) in the light of properties of the judicial implementation of the law in the context of both the decisional process and the legal reasoning within the operational interpretation of the law. The mediation, being an instrument of the opening of the legal order should be treated as a separate subtype of application of law, differentiated from judicial and administrative types. The indication of the actors operating in it, type of their competence, initiation and the course of the process as well as a way of the building of the decision through the using of axiological and functional rules of legal interpretation and the way in which the decision is justified allow to create an image of the basic elements of mediation in their decisional perspective.

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Precedent in the Decision-Making Process. Point of Legal Theory and Judicial Practice

Author(s): Leszek Leszczyński / Language(s): English Issue: 1/2018

This publication encompasses the presentation of precedent as a legal category in the context of practical (judicial) approach and in the light of the theory of law. After introducing the term “precedent”, which is both universal and relevant to the codified law order, the question of distinguishing its particular kinds is described, which appears in the Polish science of law, mainly in the theory and philosophy of law. In the practical part, precedent is treated as a part of judicial practice, which in case of the codified law order constitutes a qualified form of applying a prior judicial decision. The most significant features of this practice are covered within the framework of the legal reasoning (with regard to validation and interpretation), which occurs during the decisional process, as well as the quality of justification of the judicial decision as regards law enforcement.

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Laisvės fenomenas: problemos ir paradoksai

Author(s): Karolis Jovaišas / Language(s): Lithuanian Issue: 60 (2)/2008

The article deals with the relationship between social order and freedom, security and freedom, property and freedom; the essential conditions of freedom and its guarantees are also discussed. Social order is a very important instrument, a means for achieving positive objectives – justice, peace and stability, ensuring universal well-being and public interest. Simultaneously, a dichotomy of purpose and means is very conditional, since, with account taken of specific circumstances, social order may be treated not only as an instrument, but also as an end in itself. Basing on such conclusion, the article gives a critical evaluation of the established thinking stereotypes and clichés of international human rights documents, according to which the individual in the democratic society has always been considered exclusively as a purpose and never as a means. The article also tackles the problem whether damage to other people may be caused by dangerous, risky or unlawful actions or absolutely unnecessary only exclusively by actions of such type. Analysis is made to what extent the different views, convictions and moral attitudes predetermine the fact that damage of a certain type (e.g., spiritual and moral), inflicted on other people, is the inevitable result of differently interpreted social values.

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Формирование правовой культуры личности в обществе знания: концептуальные основания

Author(s): Yury Viktorovich Pushkarev,Elena Aleksandrovna Pushkareva / Language(s): Russian Issue: 6/2018

Introduction. The article presents a study on the methodological justification of developing legal culture of a personality in modern society. The purpose of the research is to identify the basic foundations of developing legal culture of a personality in the knowledge society. Materials and Methods. The research methodology is based on general scientific methods of theoretical knowledge, methods of system analysis, comparison and generalization of foreign and Russian studies on methodological justification of legal culture of a personality concept. Results. The authors reveal the axiological foundations for developing legal culture of man and society. The importance of philosophical understanding of legal processes and reflection of legal knowledge on the formation of legal culture are emphasized. The authors argue that legal culture, incorporating general cultural and specific legal characteristics of personality development, necessarily reflects modern trends of societal development. The culture of human rights and peculiarities of its correlation with legal culture as a phenomenon of social life are investigated. The study reveals positive and negative, universal and national factors influencing the development of legal culture. The conditions of developing legal culture of a personality in the context of the knowledge society are determined. Attention is focused on specifics of legal education in modern society. Conclusions. The authors conclude about the basic foundations of developing legal culture of a personality in the knowledge society.

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Žmonių lygybė: problemos ir paradoksai

Author(s): Karolis Jovaišas / Language(s): Lithuanian Issue: 55 (1)/2007

The Constitutional principle of human equality express their formal equality and the prohibition to discrimate equal people or, contrarily, to accord them privileges. However, formal human equality does not disprove their actual inequality and it even helps to occur for such. There exist no thorough research of human equality theoretical and practical problems but only fragmentary attempts in Lithuanian legal literature. There are the problem of the approach of the equality and inequality of different people, according to who, from what point of view and according to what criteria treats it, discussed in this article estimating the steady way of thinking critically. There is also studied if the state intervention to safeguard the particular level of the human equality is justifiable, what results from such intervention could be legitimate and might the illegitimate objects cause negative results.

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Laisvė: tradicinio požiūrio netradicinė interpretacija

Author(s): Karolis Jovaišas / Language(s): Lithuanian Issue: 58 (4)/2007

Article’s author agrees that dominant approach according which freedom understandable as individual right to act under his will if it is not illegal or harmful to other persons is still actual. On the other hand, author holds principal position that thorough and reality-based analysis of the right to freedom must go beyond the borders of the mentioned approach. For sure freedom is a vital value but it has potential dangers as well. Uncontrolled freedom could be a gravedigger by itself and factor which determines many of negative social consequences. It should be mentioned that external freedom of human does not mean his internal freedom. Individual acts are determined by individual’s antisocial strains and egoistic interests. Those factors are limiting options and priorities of human actions. In this respect conventional concept of freedom is analysed not in isolate way but in contrary – bearing in mind all the dangers of uncontrolled freedom and the dark side of a human nature. This allows new interpretation of a basic problems of the right to freedom though strictly speaking it is the new modification of old and unremembered ideas.

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Autonomous Administrative Authorities - a Means to Achieve Administrative Justice in the Rule of Law

Author(s): Cristian Radu / Language(s): English Issue: 57/2018

The evolution of contemporary society and the paradigm shift regarding the centre of the rule of law from philosophical reason to scientific reason was the context that required the establishment of institutions meant to contribute to the achievement of justice and the defence of justice by maintaining the trust of individuals in the rule of law, limiting the interference of the political power and the pressure of different interest groups, but also by taking measures to restore social balance if it has been shaken by the action of various actors in social life. In this context, autonomous administrative authorities are a legal achievement of the rule of law in answer to the increasing social complexity within states and the inability of traditional structures to keep pace with new realities outlining a high degree of technicalness. The role of the autonomous administrative authorities is to contribute to the very protection of their creator by avoiding the rule of law philosophy from falling into abeyance, by pursuing the protection of fundamental rights and freedoms and liberating individuals from the gripe and oppression of various forces, be it private or public.

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Politică, stat şi morală în gândirea iluministă

Author(s): Constantiu Dinulescu / Language(s): Romanian Issue: 27/2010

Illuminism has represented an essential qualitative shift in the evolution of manhood spirituality as it brought with it a categorical victory of reason over medieval dogmatic conceptions. This article is a synthetical presentation of the ideas (freedom, supremacy of the law, separation of powers etc.) of the main illuminist thinkers (Kant, Locke, Montesquieu, Voltaire, Diderot, ďHolbach, Rousseau etc.), who, during the Modern and Contemporary Ages, would become true norms of the rule of law, met in the political practice of Western states.

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ЛУКИЋЕВ СИСТЕМ ФИЛОЗОФИЈЕ ПРАВА

Author(s): Dragan Stanimirovic / Language(s): Serbian Issue: 43/2003

In this paper, the author discusses Prof. Lukic's system of jurisprudence considering a wider context of his apprehension of philosophy, law and jurisprudence. Prof. Lukic defines the concept of jurisprudence as a separate discipline of philosophy, having its origin and source in general philosophy. Accordingly, the most significant work in Prof Lukic's opus, "The System of Jurisprudence", on the outset, provides an overview of the so-called general philosophy. First, due attention has been given herein to Prof. Lukic's understanding of philosophy as a critical, cognitive, and sur-experiential discipline. Second, Prof Lukic's division of the empirical world into real and ideal is original. Third, with reference to monism and dualism, Prof. Lukic1 s philosophical tribalism is quite new and distinctive, considering his original apprehension of the real world as a unity of matter, energy and spirit. These concepts pervade jurisprudence as well. In addition to the system of general philosophy - its concept, ontology, axiology and gnoseology - Prof Lukic consistently elaborates on the elements of the system of jurisprudence - its concept, ontology, axiology and gnoseology of law.

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ANALOGIJA U PRAVU. ZNAČENJE I UPOTREBA

Author(s): Žaklina Harašić / Language(s): Croatian Issue: 3-4/2018

Conclusions by analogy are common in all areas of human activities, including law. Conclusion by analogy in law can be reduced prima facie to the same form as the conclusion by analogy in general i.e. two premises and a conclusion. However, it differs from analogical conclusion in general, because one premise in law conclusion must be normative (not only factual). Researches into analogical conclusions (in general and in law) have been done from many aspects and by a number of authors. There is a consensus only on an elementary form, and it is founded on the similarity of two objects (two features) in some characteristics, which draws a conclusion that these objects (features) are similar in some of their features. When it comes to analogy in law, there are four types of analogies: A statutory analogy (analogia legis), law analogy (analogia iuris), the inter legem analogy, and an analogy we use in law of precedents. These analogies are utilized to interpret legal norms and the loopholes in the law are closed (with exception of criminal law where there are no loopholes). This becomes both particularly interesting and disputable when it comes to legal principles.

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НЕОРЕАЛИЗАМ КАРЛА ЛЕВЕЛИНА (KARL LLEWELLYN)

Author(s): Sava Aksić / Language(s): Serbian Issue: 79/2018

As a representative of the School of American Legal Realism, Lewellin thinks that the meaning of the right is in its predictability and the ability of individuals, assessing the chances in a dispute, to address the court. In his view, the right is found in real relations, and not in legal rules. He understands the state as a sufficiently organized group that is recognized by its own people and other peoples as legitimate, which is a stance that he later corrected to some extent since legitimacy is a normative and not a sociological and legal principle. His sociology of law is based on the reality of the courts and the application of the results of the real courts. He considers a nation, a national feeling, a national cultural asset, a genus of homo sapiens ... to be legally relevant facts, and he views legal life as the interaction of certain effective persons in a society rather than the realization of justice. Stating that studying the rules or norms by which behavior is guided is one of the ways of studying the law, Lewellin makes a retreat in relation to the classical sociological school by recognizing the significance of both legal norms and facts in legal life. Lewellin makes a distinction between the science of law and the law itself (no matter what it implies in real terms), exposing the model of the theoretical and legal reason as a form of creating the highest legal concepts.

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Analiza predvidljivosti postupanja sudija – povratak mehaničkoj jurisprudenciji?

Author(s): Dragutin Avramović / Language(s): Serbian Issue: 2/2018

This paper is about the roots of computerized predictive analysis of judge’s behavior, and it investigates problems which predictive analysis is facing today, its prospects, as well as advantages and limits of that method. The author is of opinion that major limitation in predicting behavior of a judge with broad precision is emotional shortage of artificial intelligence. Following the line of legal realism the author concludes that unpredictability of judge’s behavior, namely specific and unique feature of their personalities, makes legal outcome not completely certain. Algorithms are today based mostly upon mechanical jurisprudence and syllogistic reasoning as computers are “fed” by man. In the future it might become possible, due to dynamic development of technology and with possibility of developing self-learned artificial intelligence, that machines could once replace judges or at least predict rulings with a very high percentage of probability. But, if the law is ars boni et aequi, and that ancient Roman postulate is not yet validly contested, then the range of mechanical jurisprudence is still limited. Machine may be able to gain equality, as it is basically and originally a mathematical principle and operation. But it cannot reach sensitivity of the second, correspondingly important, or even more fundamental legal principle – what is good in general and in concrete case. Good is a value, having its specific loading and feature in every single case. This is something that the machine cannot properly recognize and measure.

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Aberratio ictus u krivičnom pravu

Author(s): Slađana Jovanović / Language(s): Serbian Issue: 2/2018

This article discusses different legal solutions to situations referred to as „aberratio ictus“, in terms of its particular manifestation in criminal law. The concept of aberratio ictus, that can be translated as „attack gone astray“ is used to determine criminal responsibility of the offender, when his actions, directed to committing a specific offence, abberate from the expected course of events, resulting in harming an unintended object. Doctrinal solutions in this area variate between the theory of equivalence and the theory of concretisation, both of which impose exclusive arguments regarding the object of the intent. Thus, the first one emphasises the protection of abstract values, that results in punishing the offender for the completed, intentional offence, despite the aberration. On the other hand, the reasoning behind the theory of concretisation takes into account the relevance of the specific identification regarding the object of intent. According to this view, the offender is liable for the attempt towards the first object, accompanied with negligence liability for the result. It can be noticed that the legal nature of the protected objects appears as a decisive circumstance for determining criminal responsibility. Unlike the situations when the mentioned objects are not of equal values, where there is no doubt that aberratio ictus involves the responsibility consisting of the attempted offence, in addition to negligence towards the actual result, the equivalence of the attacked and harmed object, causes divergent opinions among different authors in legal theory. This affects not only the legal solutions in positive criminal law, which are mainly based on general rules, but also the judicial practice in this area, that is evidently not unique. Also, it can not be negated that these solutions are based on valuative criteria, giving the advantage to one value versus the other. After analyzing the application of suggested theories in practice and comparative legal solutions, the author pleads in favour of the attempt model, based on the theory of concretisation, suggesting the possiblity of its legal regulation in serbian criminal law. Its advantages are therefore attached to better concordance with practical demands and main principles of criminal law in general.

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The Interpretive law, between the different meanings given by pedants and the abusive legislator’s intervention in jurisdictional disputes

Author(s): Oana Maria Bălan / Language(s): English Issue: 32/2011

The consequence of authentic interpretation consists in an interpretive law. This interpretive law tends to clear up the meaning of a previous equivocal law, without creating further rights. The interpretive law must not be a new law. The procedure of interpretive law has to be employed only when the ambiguity of a normative text leads to confusions and jurisprudential struggles. Since it has as a purpose to clear up the meaning of the previous law, the interpretive law is part of the one which is being interpreted. Regarding to this, the interpretive text is a declarative law, because it proclaims the meaning that the interpreted law has always had. The approach of the interpretive laws theory is highly delicate.

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LAW AS A WAY OF MASTERING THE PAST: TRUTH, JUSTICE, RECONCILIATION

Author(s): N. I. Satokhina / Language(s): English Issue: 1/2018

The present essay explains law as a way of mastering the past in case of large-scale human rights violations. On the example of the theory and practice of transitional justice, such key strategies for mastering the past as truth, justice and reconciliation are viewed as forms of mutual recognition. The very phenomenon of transitional justice is conceived as a ’border situation’, which makes it possible to clarify the true nature of law as an antithesis to violence and its fundamental connection with the peace.

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ЛУКИЋЕВ СИСТЕМ ФИЛОЗОФИЈЕ МОРАЛА

Author(s): Dragan Stanimirovic / Language(s): Serbian Issue: 45/2004

Prof. Radomir Lukic (1914-1999) is a one of the most significant sociologists, and the founder of the Yugoslav system of the sociology of morals. He contributed to the development of the basic elements of the Yugoslav sociology of morals in his major systematic pieces of work, such as "Fundamental Sociology", "The Theory of the State and the Law", and "The System ofJurisprudence". In his major piece "The Sociology of Morals he developed a comprehensive and original system of the sociology of morals. In "The Sociology of Morals in the spirit of a genuine scientific critique, Prof. Lukic presented the most significant scholastic doctrines on morals, developing a logically consistent conception of morals as a social phenomenon. His system of the sociology of morals is based on coherent scientific methodology. In the introductory part, he defined the concept of the sociology of morals (including the subject matter and method, types of sciences and disciplines on morals, and their relations with the sociology of morals). In a separate part, Prof. Lukic deliberated on morals as a social phenomenon, defining the general concept of morals, the sociological concept of morals, and the social processes related to morals. In the voluminous next part, he rendered the impact of morals upon the society, including both general and particular role of morals in society. In conclusion, Prof. Lukic considered the contemporary social processes and the future of morals.

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НОРМЕ И ДИЛЕМЕ О ПРАВНОМ ПОЗИТИВИЗМУ

Author(s): Suzana Medar / Language(s): Serbian Issue: 45/2004

The term "legal positivism", understood in terms of general methodological requirements for the experiential and ethically neutral approach to law, envelops at least three basic theoretical concepts. Beside the normative concept, which is almost taken for granted, there are two other concepts of law that meet the requirements: the concept of law as a real social phenomenon, and the concept of law as a cultural phenomenon. In that respect, a productive classification implies grouping various positivistic concepts into a trichotomy: normative, anti- normative and culturalistic legal positivism.

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О НОРМАТИВНОСТИ ПРАВА ХАНСА КЕЛЗЕНА

Author(s): Marko Trajković / Language(s): Serbian Issue: 45/2004

The concept of law as a normative order is an issue which has not been universally agreed upon in the branch of knowledge concerned with jurisprudence. As a matter of fact, Hans Kelsen's specific method of treating the law has contributed to a complete and sustained apprehension of the difference between legal needs and fact. It is impossible to imagine the concept of law without a legal norm. We have to understand the standpoint that the law communicates: what it means in itself (Sein), and what it ought to be (Sollen). The author's intention has been to present the law as a normative phenomenon. The normativity of law must be highlighted but it cannot be regarded as identical to law, for it is only one of its qualities - the most important, though. Subsequently, the author explores the relations between Hans Kelzen's normative theory and the idea of justice.

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