ВРЕДНОСНА УСМЕРЕНОСТ ПРАВА НАСПРАМ ПРАВНОГ ПОЗИТИВИЗМА

Author(s): Marko Trajković / Language(s): Serbian Issue: 1/2014

The law cannot squeeze out values. Thus, it comes as an imperative of our reality to set the place for the law in the world of values. The world of values is not apart from our reality. In our reality the world of values is the purpose of everything that exists. Actually, it is about the demand to bring values into our reality. The meaning of values is absolute. The eternity of values immediately points to the absolute order of values, which as such has its „homeland“ in Creator. The issue of finding the place of the law in the world of values is a „pre-legal“ issue. Thereby the world of values is becoming the assumption of the existence and development of the law. Legal norm then becomes the formulation of values. Legal norm is not precious in itself, but only if it expresses fundamental values. Legal norm has to be the logical formulation, that is to say, it has to deliver the contents of value correctly and appropriately. As an expression of the value dimension legal norm obtains the binding power. Keeping in mind the legal norm defined in such a way, nobody can deny its necessity in reality. The law then expresses the contents of value and proposes the model of the ideal behavior. The fact that values have „creating power“ is thus proved to be true.

Proučavanje prava – pravna nauka, teorija i filozofija

Author(s): Goran Dajović / Language(s): Serbian Issue: 2/2017

In the paper the author analyzes a topic that is relatively neglected in domestic legal theory, namely which are the ways of study of the law. In our legal culture, it is customary for disciplines dealing with the study of the law to be divided into legal science (legal doctrine, doctrinal study of law), empirical legal disciplines, legal theory and legal philosophy, and this division is taken as an initial framework of the analysis. The article examines the basic characteristics of each of these approaches to study of the law, with a previous explanation of the wider disciplinary and epistemological framework within which they can be classified. After analyzing each individual approach to law research, it comes to the conclusion that dealing with the first and second kind of research (doctrinal and empirical) is necessarily related to the third (theoretical) and that the third relies on the fourth (philosophical). In other words, every successful and fruitful legal scholar (doctrinal or empiricist) at the same time is a legal theorist and sometimes a legal philosopher. And vice versa. This, however, does not mean that the existing disciplinary division of study of the law is not justified, nor should it be neglected (especially for didactic reasons), but only that it is a question of the focus of the legal researcher on a particular problem that he solves, and not the question of an intransigent and insurmountable disciplinary barriers.

РАЧУНАРСКА СИМУЛАЦИЈА КЕЛЗЕНОВОГ МОДЕЛА ПРАВНОГ ПОРЕТКА У СВЕТЛУ ТЕОРИЈЕ ХАОСА КАО МОДЕРНЕ НАУЧНО – ФИЛОЗОФСКЕ ПАРАДИГМЕ

Author(s): Srđan Budisavljević / Language(s): Serbian Issue: 79/2018

The intensive development of information technology has been a presumption for expanding the traditional methodological framework and instruments available to legal science in examining the complex phenomenon of law. Moreover, this extended framework provides an opportunity to align the procedures of creating and applying the law with the undamental principles of the Chaos Theory, as a modern scientific and philosophical paradigm which gives us opportunity to redefine the existing forms of perception of the entire Universe, as well as diverse domains of law. The use of computer-generated models in virtual reality allows researchers to stop being passive observers and to asume the role of moderators in computer simulations, enabling them to control the speed and the modus operandi of the investigated phenomenon, and to focus on the higher relevance aspects or segments of research. Thus, the legislator has the opportunity to anticipate any drawbacks in the practical application of a particular norm or legal act, as well as the adverse effects it would generate for the social community.

ДО ПРОБЛЕМИ ОБҐРУНТУВАННЯ ПРОЦЕСУАЛЬНОСТІ ПРАВОВОГО ЖИТТЯ

Author(s): Inna Igorivna Kovalenko,Eduard Anatoliyovych Kalnytskyi / Language(s): Ukrainian Issue: 1/2018

Problem setting. The modern understanding of law implies the need of new methods, which could correlate theoretical models of legal regulation and changes in the sociocultural context. Reference to the theoretical opportunities of phenomenology enables, in particular, to study the nature of the legal life procedural features, and the conditions of forming the image of atemporal legal structure.Recent research and publications analysis. Currently humanitarian knowledge includes a significant number of papers, devoted to the theoretical problems of studying the phenomenon of law. First of all, the authors emphasize that the field of philosophical- legal and legal studies is in the methodological crisis, determined by the uncertainty of the scientific status of the philosophy of law, one-sidedness of classical types of the law understanding, the incoherence of legal language and thinking styles etc. In addition, despite quite common use of the phenomenological methodology, the philosophy of law still lacks integrated concepts, enabling, inter alia, to find out ontological bases of legal life as a meaningful law configurate.Paper objective. The objective of the study is the analysis (as the initial stage of research) of the existing opinions on the problem of the process and structural nature insocial cognition to explain the nature of the law process, as well as further search for the ontological grounds of legal life.Paper main body. Phenomenological methods applied in studying legal life enable to suggest that law is of process nature, which is, in turn, comparable to the process nature of sensemaking. The search for the ontological grounds of legal life implies retrospective analysis of the issues, related to the research into structural and process properties in philosophy and phenomenology of law.The study of the works by E. Husserl shows that the philosopher confirmed the inner time of consciousness, but avoided considering reality itself from the standpoint of temporality, changeability and process. E. Husserl’s followers (N. Alekseev, А. Rainakh) believed that the legal meaning existed beyond the time context, but could be found within time when it was analyzed as a social phenomenon.The structural-functional approach and the systems theory show a number of difficulties, related to the conventionalism of the synchrony – diachrony dichotomy, the lack of considering the activity level of the subject of cognition, the openness of identifying the nature and mechanism of actual social changes, eclectics of cognition methods etc. The analysis of the process philosophy tradition (H. Bergson, N. О. Lossky, А. Whitehead) does not reveal clear arguments for the statement of the process nature of legal life either. It is due to the fact that process ontology is theoretically supported, on the one hand, by indestructibility of duration as an immanent property of the material world and the world of consciousness, on the other – by the need of elements beyond the time.Alternative approaches to solving the problem of the ontology of social phenomena (К. Popper, R. Nisbet, Ch. Tilly, I. Wallerstein, N. Luhmann, V. Ye. Kemerov etc.) demonstrate the transition from the basic image of the structural nature to the process nature as the essential subject of practical and pure problems of social reality consciousness. They try to integrate structural and process nature as the modes of social reality ontology.The analysis of theoretical and methodological arguments for the statement of the process nature of legal life enables to confirm that process is not its absolute substance. The phenomenon of legal life also shows structural properties, which, however, exist only within the process dimension. The availability of process-structure ontological dichotomy in the descriptions of legal life is determined by the fragmentariness of social existence. Legal structure is a virtual image, which is implemented as a process in the practices carried out by the subject of law. In turn, the description of legal processes suggests the«inclusion» of intentional structures, being in charge of articulation and sustainability of their perception.Conclusions of the research. The solution to the problem of searching legal life ontological grounds consists in generating integrative experience of law description and singling out two interrelated grounds: «law-structure» and «law-process» within the integrity of legal life.

БУТТЯ ПРАВА ТА БУТТЯ У ПРАВІ: ВІД ПЕРФОРМАТИВУ ДО ПЕРФОРМАНСУ

Author(s): Yuliia Vasylivna Meliakova / Language(s): Ukrainian Issue: 1/2018

Problem setting. In modern philosophy, the pursuit of the authenticity of a reality ends in the fact that it finds itself in a simulative field of virtuality. Virtual reality is guaranteed by special technologies of reproduction and visualization, openness and self-organization of systems. The problem of the meaning and effectiveness of law today can also be solved through the methodology of virtuality, visual means of reproduction and ways of expressing the law, as well as the principle of dynamism. It is an attempt to re-read the concept of the dynamism of law along with the search for new forms of its being presented in this study. Recent research and publications analysis. Philosophical tradition of the dynamic nature of law is now developed by I. Chestnov, V. Chetvernin, A. Polyakov, S. Maksimov,A. Stovba and other Russian and Ukrainian philosophers. Significant experience in this area belongs to the European representatives of the communicative paradigm. J. Austin in the framework of communicative philosophy developed the theory of performative discourse. According to this theory, speech acts that have the character of an order, demands or vows are not statements, but actions. H. Hart applied the theory of performative statements to legal texts and discourses. Among the Russian scientists V. Ogleznev, J. Gryaznova,J. Kupchenko are engaged in the problem of legal performative.The Polish researcher E. Domanskaya notes that performativity is becoming a new modern paradigm of cognition and methodology of science. The technique of performance in art and its expressive possibilities are the subject of research by S. Kornev, P. Waibel,S. Zizek, K. Malabu. Performance as an ontological space for the production of presence and a special technique for provoking the corporeality of things is the subject of research by V. Rybakov, H. Gumbrecht. At the same time, the question of the possibility of using the performance tactics in the practice of reproduction of justice remains open. In this study, performance is seen as a special way of being the law. The law-performance equips the presence of a subject in it.Paper objective. The purpose of this study is to study the expressive possibilities of artistic performance, as well as the ontological analysis of legal reality in a format of performance. The dynamic structure of the law-performance is regarded here as a guarantee of inter-action of the mutual influence of the legal reality and the understanding subject.Paper main body. If the communicative theory of law saw the effectiveness of law in the language performative structures, the latter methodological experiments went beyond the text and justify the use of artistic practice of performance in the field of being and understanding of law. Text as a form of being does not exhaust the essence of law. A multilayer self-organized structure of law needs more complex expression systems than representations. Such a system is a performance. It provokes more and more possibilities of law, forms of its being.The goal of the performance in modern philosophy and art is to get rid of the comments. The goal of performance as a method of law is to rid the law of excessive semantic stability and the dictates of values. The language and text of the law should be in the service of the event, things and the body, and not vice versa. At first glance, the replacement of a legal statement or verdict with an open event, as well as the replacement of a retired arbiter- lawyer by a participant experiencing this event, make legal practice very far from legal science and legal truth. However, the reproduced life event is closest to the thing that the legal sciences call justice. Therefore, the degree of the presence of law in the reconstituted situation should not be determined by interpretation and imposition of legal myths (norms and precedents). Such a living justice can not be established by anyone. In the performance, this justice is actualized from the event itself in the format of an open presence.A legal event is a pure performance of its participants – the author and the viewer. It generates an unexpected, but true justice, which can not be fixed without depriving it of meaning. A new and new reset of the situation with the help of performances can multiply legal justice in its performative corporeality. At the same time, legal sentences, decisions, norms and interpretations that have frozen in their senses, contain the law formally, but they are farther away from its actual presence in fact.Conclusions of the research. Thus, from the lost validity of law, through its virtual effectiveness in performance, the subject comes to the presence of law in life and the presence of itself in the reality of law. This significantly changes the representation of modern man about the meaning and possibilities of law, brings to his consciousness not legal truths, but the very truth of law, which should be understood as the main value.

ПЕРФОРМАНС В МЕТОДОЛОГИИ ФИЛОСОФИИ ПРАВА

Author(s): Yuliia Vasylivna Meliakova / Language(s): Russian Issue: 3/2018

Problem setting. The modern way of being of the law and the person in law forces to search for new methods of their understanding. The meaning of the law and the power of its impact directly depend on the ontology of human presence in law. As the space of such a presence is the performance. It becomes possible through the deconstruction of symbolic legal structures (norms, legal decisions, procedures, things, procedural actions, events, contracts, virtual images, etc.). Performance can affect the subject of law, make it a creative participant in the reality of law and guarantee the reflection of legal meanings. Recent research and publications analysis. Philosophical tradition of the dynamic nature of law is now developed by I. Chestnov, V. Chetvernin, A. Polyakov, S. Maksimov,A. Stovba and other Russian and Ukrainian philosophers. Significant experience in this area belongs to the European representatives of the communicative paradigm. J. Austin in the framework of communicative philosophy developed the theory of performative dis- course. According to this theory, speech acts that have the character of an order, demands or vows are not statements, but actions. H. Hart applied the theory of performative statements to legal texts and discourses. Among the Russian scientists V. Ogleznev, J. Gry- aznova, J. Kupchenko are engaged in the problem of legal performative.The Polish researcher E. Domanskaya notes that performativity is becoming a new modern paradigm of cognition and methodology of science. The technique of performance in art and its expressive possibilities are the subject of research by S. Kornev, P. Waibel,S. Zizek, K. Malabu. Performance as an ontological space for the production of presence and a special technique for provoking the corporeality of things is the subject of research by V. Rybakov, H. Gumbrecht. At the same time, the question of the possibility of using the performance tactics in the practice of reproduction of justice remains open. In this study, performance is seen as a special way of being the law. The law-performance equips the presence of a subject in it.Paper objective. The purpose of the study is to analyze the legal reality in a format of performance, which serves as an original tactic of actualization of law.Paper main body. If the communicative theory of law saw the effectiveness of law in the language performative structures, the latter methodological experiments justify the use of artistic practice of performance in the field of being and understanding of law. Text as a form of being does not exhaust the essence of law. A multi-layer self-organized structure of law needs more complex expression systems than representations. Such a system is a performance. It provokes more and more possibilities of law, forms of its being.The goal of the performance in modern philosophy and art is to get rid of the comments. The goal of performance as a method of law is to rid the law of excessive semantic stabil- ity and the dictates of values. The language and text of the law should be in the service of the event, things and the body, and not vice versa. At first glance, the replacement of a legal statement or verdict with an open event, as well as the replacement of a retired arbiter- lawyer by a participant experiencing this event, make legal practice very far from legal science and legal truth. However, the reproduced life event is closest to the thing that the legal sciences call justice. Therefore, the degree of the presence of law in the reconstituted situation should not be determined by interpretation and imposition of legal myths (norms and precedents). Such a living justice can not be established by anyone. In the performance, this justice is actualized from the event itself in the format of an open presence.New ontological modus of law is a pure performance of its participants – the author and the viewer. It generates an unexpected, but true justice, which can not be fixed without depriving it of meaning. A new and new reset of the situation with the help of performances can multiply legal justice in its performative corporeality. At the same time, legal sentences, decisions, norms and interpretations that have frozen in their senses, contain the law formally, but they are farther away from its actual presence in fact.Conclusions of the research. Thus, the tactics of performance makes it possible to demonstrate all the richness of forms, modes and meanings of law, to achieve the present presence of the subject in law through a specific legal act. If communication is already recognized as being, discourse is a series of events, and the performative utterance is an action, then going beyond text and speech – into a diverse symbiosis of symbolic horizons, that is, performance, means a fundamentally new way of being a right that is adequate to modern reality.

Пролегомени към една бъдеща методология на правото и към една десакрализираща теория на правото

Author(s): Victor Ivanov / Language(s): Bulgarian Issue: 5/2018

(The title of the study is a paraphrase of Kant's work “Prolegomena to any Future Metaphysics (Prolegomena zu einer jeden künftigen Metaphysik)” The study sets out and defends the understanding that only the Legal Methodology derived from the integral development of scientific knowledge and which is based on the general methodology of science as a subject of management of the system-based scientific knowledge manifesting itself in its static, as well as in its dynamic form, as a continuous process of growth of the conceptual apparatus of science and the multiplication and deepening of scientific hypotheses and theories, and only such a legal methodology will meet the high modern requirements for a scientific methodology. On the other hand, the formation of a modern legal methodology, which is a product of the New Age Cultural Paradigm (NACP), will inevitably lead to reformatting of legal theory and to the construction of a new Non-sacred legal theory (and theory of the state). The Non-sacred legal theory must have the following characteristics: to be critically rational, anti-dogmatic, anti-apologetic, synthetically-encyclopedic, non-sacred (nonbewitched, disenchantment, non-fetishizing, Entzauberung) and paradoxical in its logical structure, but aiming for exquisitely non-contradictory presentation and expression. For the creation of such a legal theory, the author relies upon the drawn up by the author basic law of the KPNV - the Law for the Expanded Reproduction of the Theoretical Knowledge (Law for Extended Reproduction of Critical-Rational Notion Systems, which reveals the processes of reproduction of scientific knowledge, processes which in their essence are non-sacred (anti-fetishizing, non-bewitched) processes of rational and critical understanding of reality.

Legal Certainty and Taxation: The Problem of Retroactive Interpretation

Author(s): Dejan Popović,Svetislav V. Kostić / Language(s): English Issue: 4/2018

This article shows that the principle of legality of a tax norm is not exhausted in its “source” component (i.e. that the norm is enacted by parliament) but also encompasses the “content” element – a set of requirements for it to be deemed as good law. It is not just retroactivity of a law that is an issue, but legal certainty is also jeopardized by retroactive interpretation implying changes in interpretation of the same norm by authorities who understood it for a long period in a different sense. A threat to legal certainty also exists when a provision that was dormant for years is suddenly applied. A case study shows that the Serbian Parliament issued an authentic interpretation of a tax norm to assert essentially a different interpretation compared to the one well-established in the past, in order to solve a particular case, while a court used that interpretation to pass judgment in a pending case. Within the EU we find notable cases where not only are norms attributed a certain meaning from their inception, even though 60 years may have passed from their initial introduction to the possibility of the existence of a “new meaning” being suggested for the first time, but taxpayers are made to suffer the consequences of the new interpretation. Had the legislator been able to pay more attention to the content of the bills and apply a more comprehensive approach to current issues, the legal certainty, in terms of avoiding “innovative” retroactive interpretations, could be preserved.

Justified Epistemic Authority (In Legal Interpretation)

Author(s): Bojan Spaić / Language(s): English Issue: 4/2018

The paper analyzes one of the main influences on the results of legal interpretation – epistemic authority. An account of authority is given along with a distinction between two basic types of authority, followed by a brief explanation of practical authority. Epistemic authority and derivative epistemic authority in particular are explained, in order to propose the conditions under which the influence of epistemic authority on judicial interpretation is justified. The general conclusion of the paper is the following: A court or judge Y is rationally justified to defer to the ascription of meaning (interpretation) p to a legal text q of person X, if court or judge Y has good reasons to believe that X has more knowledge, skills, experience or training in ascribing meaning to (interpreting) q.

ПРОБЛЕМА ДЕФИЦИТА РЕАЛЬНОСТИ: СУБЪЕКТ ПРАВА КАК ЧЕЛОВЕК ПРИСУТСТВУЮЩИЙ

Author(s): Yuliia Vasylivna Meliakova / Language(s): Russian Issue: 1/2019

Problem setting. Being of the subject of law in colorable reality today is very difficult. Virtual and dynamical images, values and social institutes require from the subject of activity, creativeness, anonymity and multi-purpose capability. The subject who entirely acquired by these skills and properties, as well as algorithms of legal choice, is adapted well in modern world. It is characterized as the subject of total equality, the subject of freedom, he is the real subject of law. The way of his being in the world is presence – an autonomous, independent, pragmatic and free presence.Recent research and publications analysis. The questions of ontology of law are very popular in modern philosophy. Law theorists discover new forms and modes of being right. They explore qualitatively different ways of being a subject in law. The actual ontological problem today is the “lack of Reality” in the meaning of “primary reality”, authenticity, naturalness. The postmodern world is a new Reality, which is called the illusory, virtual and simulative. About this in their works write S. Zizek, J. Bodriar, H. Gumbrecht. At the same time, V. Sorokin states the fact of precisely the loss of the reality of law in postmodern jurisprudence. In his opinion, this negatively affects the law, turns legal regulation into a simulation.A number of philosophers pay attention to anthropological problems in the context of a new simulative reality. Thus, S. Zizek and J. Bodriar view the human culture of postmodernism as an elementary consumer and user, led by selfishness, self-interest, and a thirst for pleasure. L. Usanova, S. Kornev, P. Waibel and other domestic and foreign authors also speak about the virtual way of being of a person. S. Kornev asks the question of individual freedom in the “epoch of performance”. P. Waibel is engaged in substantiating the “user paradigm” in modern cognition and creativity. In turn, H. Humbrecht and, following him V. Rybakov consider the mode of presence as the main one for a person simulating in artificial reality. These studies provide rich material from the field of postmodern anthropology, allowing to build a new concept of the subject of law as a Person who is present.Paper objective. The purpose of this study is to compile an anthropological image of a post-human in the status of a subject of law.Paper main body. Superficial meanings and the changeable significance of law today allow us to speak only about its formal presence, but not the real incarnation. Presence is also the main way of being a legal entity. Man’s pure presence in many parallel realities relieves him of moral obligations, spirituality and personal responsibility. He is guided by the simple logic of the consumer and fully realizes his freedom of choice. The choice leads to the identification by the subject of himself in a particular social role for a certain period of time. The alternative and dynamic change of roles provide the subject with a productive simulation, successful self-realization and comfort of existence.Thus, it is the subject of law, which, by definition, is deprived of individuality, exclusivity and spirituality is best adapted to modern reality. The subject of law – formal and abstract – is a typical subject-consumer and subject-user of the virtual world. It is the modern subject of law that best personifies the type of Person who is present in postmodern culture.The definition of self and human choice is becoming more and more radical and unexpected. Freedom of the individual stands in the sense of “liberation” from all stereotypes, traditions, statuses, obligations, moral duty, of various belonging – cultural, social, ethnic, sexual, political, ideological or topological belonging. Today, a person independently determines the value and meaning of things, carries out a subjective legal regulation of events. Knowledge of the legal regulation algorithm makes the subject a full-fledged and relevant in the space of total presence and simulation.Conclusions of the research. A pure presence is ontologically convenient for the user, because it is relevant, legal, legitimate, neutral, anonymous, productive, and most importantly, irresponsible although it guarantees freedom. The Person who is present is able to make the most of the possibilities of the environment and their own. It is legal, not ethical abilities that help the comfortable presence of the subject in the space of permanent choice.

ВИКОРИСТАННЯ ЮРИДИЧНОГО ЗНАННЯ ЯК МАТЕРІАЛУ ТЕХНОЛОГІЇ

Author(s): Zhanna Pavlenko / Language(s): Ukrainian Issue: 1/2019

Problem setting. Identification and comprehension of ideological and methodological foundations of intellectualization of society, phenomena of resource of knowledge, information resource and information technologies (their types and levels, social and psychological aspects of knowledge movement, peculiarities of legal knowledge, conditions of application, readiness for this society, the role of jurisprudence in innovative processes) is an important and necessary component of radical improvement of national programs, desirable social transformations. Productive development and effective implementation of models of large-scale social transformations of the modern level requires a different approach to legal knowledge and helps to identify ways to effectively develop and implement models of innovative development of Ukraine.Recent research and publications analysis. The results of the research of these problems give an opportunity to note that, in general, the systematic scientific comprehension of the complex, volumetric and multidimensional problem of finding out the uniqueness of the movement of legal knowledge, in particular, their production, accumulation, transformation, translation, processing, presentation, automation, influence on transformation legal norms, jurisprudence and legal education, etc. - is only at an early stage.Paper objectiv. The purpose of this article is to consider certain aspects of the technological approach to legal knowledge based on the results of understanding this issue by various representatives of the humanities and interdisciplinary researchers.Paper main body. The article substantiates that the use of legal knowledge as a material technology affects the development of legal science. The content of the concept “technological approach to legal knowledge” is defined. It is revealed that one of the ways to improve the law can be the active application of innovation. Analyzed the current state of development of innovative and technological components in the law; it is indicated that these projects as a core contain an array of legal knowledge. The features of legal knowledge are highlighted and the analysis of the impact that has to do with legal knowledge as a technology material on the development of jurisprudence is carried out. It is revealed that at the present stage legal knowledge gradually takes the place of one of the weighty components of the array of modern information and technologies circulating in society. It is shown that the philosophical and legal understanding of the technological approach to legal knowledge, taking into account the national specifics of our country, contributes to the identification of ways for effective development and implementation of innovative development models of Ukraine.Conclusions of the research. Methodology of technological attitude to legal knowledge is a complex problem that can be solved on the basis of a constructive dialogue between the developers of artificial intelligence systems and lawyers. The structure of knowledge is fundamentally complex, it contains various facts from the relevant field of law, the interrelationship between them, the rules of action, knowledge of how to include knowledge in the artificial intelligence system. The socio-cultural meaning of the technological approach to legal knowledge is the translation of expert knowledge into the world of society. Submission of legal knowledge in these systems translates the specificity of human knowledge, the features of the relationship of its main levels to the area of actual practical problems that require the attention of scientists, therefore, the prospects for further research in this direction are directly related to the study of the structure of knowledge in the field of law.

SORTIR DU POSITIVISME EN ALLANT VERS L'ETHIQUE DE LA DISTINCTION

Author(s): Jean-Jacques Sarfati / Language(s): French Issue: 1/2019

Ce texte propose de revisiter l'éthique sous l'angle d'un concept peu approfondi qui est la distinction. Qu'est-ce que nous entendons la distinction ? A l'heure où l'éthique semble drainer un ensemble de valeurs confuses et où sa demande paraît déceler un désaccord profond sur les éthos, il convient sans doute de revenir à l'approfondissement de ce concept de distinction. Celui-ci demeure une des clefs de la recherche personnelle que nous avons modestement entreprise depuis une trentaine d'année, d'abord comme juriste puis comme philosophe. La distinction est, selon l'approche que nous proposons, un médian entre la séparation et la confusion. Elle est ce qui permet de saisir des nuances de chaque entité quelle qu'elle soit. La saisine de ces nuances est essentielle pour trouver les médiations elles-mêmes vitales pour l'équilibre de tout être, pris à la fois au sens individuel ou-et collectif du terme. Elle est donc un des outils d'une éthique digne de ce nom mais aussi d'une philosophie qui recherche à mettre en évidence - sans idéalisme ni cynisme - une harmonie des profondeurs. Les médiations, toutes en nuance, assurent les ponts entre deux extrêmes qu'il ne s'agit pas de vouloir éradiquer mais qu'il faut plutôt chercher à distinguer afin d'éviter qu'ils nous écrasent tant ils parlent et hurlent fort. La distinction est donc le seul moyen de ne pas se laisse emporter par ce flot de bavardages insipides.

Legal classification and judicial syllogism

Author(s): Mioara-Ketty Guiu / Language(s): English Issue: Special/2018

Particularly in criminal matters, the judicial errors register an alarming increase, so much so that it not only affects the destiny of the wrongfully sentenced or the groups that they belong to, but also the destiny of the entire society. A cause of this situation resides, from what it seems, in the lack of thorough legal studies with regards to the logical operations which should stand at the base of the decision that an actual act does constitute a certain offence, with a well specified “classification” or “qualification”. The present paper tries to actuate debates on the matter, which has been wrongfully neglected. With this purpose, the author begins from a rather old idea, but insufficiently known, and that is that any court sentence is the result of two types of judicial syllogisms: qualificative and decisional. Elaborating this idea, the author observes a series of other aspects, such as: the fact that, incriminal matters, the qualificative syllogisms serve to establish the legal classification, while the decisional syllogisms serve to establish the sentence; the fact that, in criminal qualificative syllogisms, the subject is always the actual act, and the predicate is a criminal concept (the notion of an offence); the fact that the legal classification is not an “operation”, as is claimed by many authors, but a conclusion, specifically to a qualificative syllogism etc.

Leon Petrażycki and a pluralism of the sources of law

Author(s): Michał Peno / Language(s): English Issue: 18/2019

The article pertains to the issue of decentralisation (and democratisation) of sources of law and reconstruction of the concept of sources of law. Models of thinking or categories adopted in jurisprudence oftentimes constitute a manifestation of a repression that is stronger than the classic legal sanction. This is because they necessitate flattening of the social reality image, which tends to be richer than the corresponding law. The aim ofthis article is to indicate that the scarcity of law stems solely from thinking habits and solutions adopted unquestionably by jurisprudence. This is also the case for the concept of sources of law. The positivist idea that law is created and imposed on citizens by the centre in power (the state, the court) remains relevant, even if there are more than just one centre. At the same time, the concept of sources of law, defended by jurisprudence, excludes anyactual displays of pluralism, thus preventing bottom-up law-making processes (perhaps except for soft law of unclear legal status) and recognising their role in the legal system orthe legal order of a given state. Pluralism of sources of law is one of the elements of theory of law formulated by Leon Petrażycki. If we assume that the standard positivist model ofsources of law is the currently binding one, Petrażycki's concept provides an alternative that allows us to indeed recognise and include into the notion of law all these rules that are in fact something more than morality, habit or custom in view of addressees, while maintaining the integrity and efficiency of law and traditional ways of understanding law in countries of the Enlightenment tradition.

FILOSOFIJOS GALIMYBĖS IR JŲ APRAIŠKOS ĮSTATYMŲ LEIDYBOJE

Author(s): Darijus Beinoravičius / Language(s): Lithuanian Issue: 96/2018

Plato has noticed that the state is best when it is ruled by a philosopher, because such a ruler allows the wisest laws. Today wisdom is formalized in legislation. It can be linked to legislative projects in certain specialized institutions. The search for wisdom can also be found in public consultations, as they gather as much social information as possible so that decisions are more objective, comprehensive, fairer, and, moreover, more intelligent. It is debatable how to formalize the optimal ratio of law and quality to make it effective. The article discusses philosophy as a search for sources of wisdom and its manifestation in lawmaking.

“Everything for Sale!” Contract Law in the Context of the Moral Misery of the Modern West

Author(s): Jacek Mazurkiewicz / Language(s): English Issue: 1/2019

The article contains a critical evaluation of the moral and social function of contract law. It shows the breaking of the principle of the equality of parties. Moreover, the examples of making contracts of what belongs to the fundamental human goods are also revealed. It presents violations of the principle of trust of parties that conclude contracts as a result of state intelligence operations. The paper exposes the use of electronic manipulation, because of which a weaker party of the contract is often helpless. Attention was also paid to the development of economic and commercial sanctions, which repeatedly frustrates the principle of freedom of economic activity.

Ritualuri ale răspunderii

Author(s): Valentin Constantin / Language(s): Romanian Issue: 08/2019

K roli abdukce v právním myšlení aneb jak poznatky o abdukci mohou zvýšit pro-systémovost interpretace a aplikace práva

Author(s): Katarzyna Žák Krzyžanková / Language(s): Czech Issue: 4/2019

The paper deals with the issue of abduction. First of all, the paper presents the development of the concept of abduction in the work of Charles S. Peirce, who was the first in modern history to examine abduction and suggested its two partially different concepts; namely abduction as one of the basic types of logical inferences, and – later – as a necessary stage in any process of creating new hypotheses or theories explaining a certain phenomenon, where abduction allows to generate explanatory hypotheses and to choose from possible explanations that appear to be the most appropriate in the given case. The catalogue of criteria that, according to Peirce and his followers, make it easier to select the best explanatory hypothesis is also presented. Attention is paid to Peirce’s consideration about the nature of human abduction reasoning. The analysis is supplemented by introduction of two basic directions in contemporary research in this field. In the second part, the paper identifies the basic types of cases which we encounter with abductive reasoning in legal thinking. Particular attention is paid to its use in practical thinking, namely situations where abduction reasoning contributes to finding a causal explanation of a certain legal-relevant phenomenon, to a legal assessment of the facts and to the formulation of an interpretative conclusion of an unclear provision. It is considered how the criteria determining the selection of the explanatory hypothesis, as well as knowledge of abduction itself, can contribute to pro-systemic legal interpretation and application, thus helping to reduce irrationality and arbitrariness of these processes. In examining this issue, one of the main problems of contemporary legal science and practice is identified, namely the absence of sufficient interpretative rules regulating conflicts between interpretative conclusions obtained on the basis of various interpretative methods.

A European Controversy of Juridical Thinking: Juridical Doctrine and/or Legal Science?

Author(s): Ion Craiovan / Language(s): English Issue: II/2014

Communication proposes some tests and family considerations words: legal doctrine, legal knowledge, legal knowledge, the meaning and the meanings conveyed especially in european and romanian theoretical space. Thus, if the terms of legal doctrine and legal science, both used, known - as - the theoretical approaches on the right, are synonymous, we can use random or are there reasons to use preferential its just one tooth, depending on context? It justifies the elimination of one or the other in the field of scientific research ? If there are different or partial identity, what the differences of meaning and purpose and epistemological implications about legal knowledge ? What relationships exist between legal doctrine, legal science, legal knowledge ? Therefore, we propose not merely linguistic - etymological considerations or purely epistemological.We argue that the decisive control solution adopted understood how legal knowledge, nature and its potential, with major implications for legal and social practice. We conclude, following summaries considerations, the coexistence phrases " legal doctrine " and " legal science " in the contemporary legal knowledge and no question repudiation of one or the other. But not all have the same meanings conveyed epistemological value and oscillates depending on the context of the unacceptable, the harmful and desirable. These phrases may know the identity of the contemporary spirit, to the extent that legal doctrine promotes specific legal phenomenon, but is open to acquisitions and contemporary philosophy of science, complex approaches, interdisciplinary methodological arsenal, by accepting that legal practice involves how inherently legal theory, the aspiration of new degrees of science, including legal problem of the future, by integrating general knowledge network.

Considerații privind influența idealismului german asupra sistemului dreptului. Evoluții și interacțiuni

Author(s): Claudiu Ramon Butculescu / Language(s): Romanian Issue: II/2014

This paper tackles the issue of German idealism as a school of thought in law and analyses it in opposition to natural law and legal positivism. Within German idealism, the most influential works are those of Immanuel Kant and the pivotal point of this school of thought is the consideration of reason as an essential trait of humans, which differentiates them from other living beings. In this article the essential concepts envisioned by the most known representatives of these school of law, including Kant, Fichte, Hegel, Stammler are analyzed and discussed briefly. Also, the influence of German idealism on the current development of EU law is also examined, both from a legislative and jurisprudential point of view.