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The article discusses good law. The author poses questions: Why good? Why is law to be good? And he provides an answer to it. In conclusion, he claims that good law is indeed (should be) directed at the man, both in making and applying law, as it is the man that is the equitable good, “good in itself”, the objective and absolute aim. The aim of law is the man and his good correlated with the common good. And law is good law insofar as it has the “force of law” and serves this aim.
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The article makes an attempt to analyze the concept of the social agreement as a particular form rationalizing the foundation of social life. The author believes that the social agreement is a plane to realize the idea of freedom including political freedom. A retrospective view of the idea of freedom and the idea of equality are closely correlated which shows their radical character. If particular individuals make an agreement it means they are equal, and if they limit their natural freedom to the same extent towards the powers that be it means the amount of freedom was the same.
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The article makes an attempt to analyze particular relations connecting the law and rationality. In the widely-held feeling, the law is a natural derivative of mind and such an approach is strongly placed in the history of ideas (Cicero, Saint Thomas Aquinas, and others). However, the crash of the Enlightenment project makes us reevaluate a lot of beliefs. It turns out that mind and its power in social problems is the issue of an agreement, conventions and does not resemble a mathematical equation. The author believes that a lot of foundations of a modern democracy, including legal institutions, are a kind of a contemporary myth, illusion taking the form of being seemingly reasonable.
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The shortcomings discovered by the European Committee of Social Rights in case CGIL v. Italy which exist in the provision of abortion services as a result of decrease in the number of hospitals or nursing homes where abortions are carried out nation-wide, significant number of hospitals where there are no non-objecting gynecologists are employed create disproportionate relationship between the legal request to terminate pregnancy and the number of available non-objecting competent health personnel remain unremedied and women seeking access to abortion services continue to face substantial difficulties in obtaining access to such services in practice. The aforementioned health facilities do not adopt the necessary measure in order to compensate for the deficiencies in services caused by health personnel who decide to invoke their right to conscientious objection. These situations may invoke considerable risks for the health and well-being of the women concerned which contrary to the right to protection of health guaranteed by the Revised European Social Charter.
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The expression hat-trick (signifying the scoring of three consecutive goals by one player) is very common in sports. In this short paper, coining the legal use of the expression, I will try to pull (3) types of discretion out of Hans Kelsen’s Pure Theory of Law. Kelsen mentions discretion only in passing. While organizing the loose references to the topic I will analyze whether it can be said that an actual Kelsenian concept of discretion exists. Here, the focus will be on three textual moments in which discretion relevantly appears in Kelsen’s Pure Theory of Law. These three moments, I will argue, can be connected to three types of discretion.
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Freedom of contract and corrective justice are considered to be the basic principles gov-erning contract law. However, many contemporary legal orders implement various policy goals into private law. The regulatory private law of the European Union is the most strik-ing example of such a trend. This article aims at reconciling the corrective justice theory of private law and the principle of freedom of contract with the regulatory dimension of the EU law. The main argument is that the meaning of the concept of harm, one that is crucial to the principle of corrective justice, should be understood broadly so that it can transform the corrective justice theory from a monistic one into a pluralistic one.
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This paper aims to present how logic may undermine a parliamentary assault on demo-cratic institutions (representing legal guarantees of the rule of law and political freedom) based on the analysis conducted with reference to the so-called Polish constitutional crisis. I analyse whether a law can be reviewed on the basis of this law itself. The Polish Con-stitutional Tribunal faced such a problem while passing the verdict of 9th March, 2016, regarding the constitutionality of the amendment to the Statute on the Constitutional Tri-bunal from 22nd December, 2015. This problem, called a ‘verdict paradox’, was claimed to be a type of the Liar paradox. I argue that, contrary to the common view, the problem of the verdict paradox is not based on the Liar paradox; for this purpose, a logical analysis is applied to four variants of a reasoning with regard to the constitutionality of the said amendment. The distinction between two levels of analysis concerning emerging reason-ings, namely an abstract (logical) level and a concrete level placed in the context of the legal system, is also introduced. This paper demonstrates that although only two variants of the reasoning concerning a law’s judicial review based on the law itself involve logical contradiction, the possibility of employing reasonings from other variants must be ex-cluded, albeit due to alternative reasons. Therefore, the Constitutional Tribunal’s decision to avoid the verdict paradox by passing over the reviewed provisions in the review process was correct and might be perceived as an example of how logic and reason can defend the institutional guarantees of political freedom.
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The goal of this paper is to identify and criticize an intuitive way of thinking about gaps in the law, which I dub “the input view”. In this approach, legal gaps play the role of premises in legal reasoning in the sense that they trigger the application of, otherwise impermissible, methods of interpretation. The input view thus rests on a sharp distinction between the following two stages of legal interpretation: identification of a legal gap and filling it. The central motivation for embracing this view is to limit the scope of judicial discretion. I argue that the input view fails by its own lights by showing a class of cases in which it actually increases the scope of judicial discretion. My argument exploits the observation that, on any account of legal gaps available to the proponent of the input view, there will be cases in which a judge has discretion to say whether it involves a legal gap or not.
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Crime has many forms of objectification in daily life. How to get there and what are the criminogenic factors that favor the criminal phenomenon, are questions that await an answer depending on the evolution of the phenomenon that seems increasingly complex from one generation to another. More generally, it can be mentioned that the dynamics of the phenomenon cannot be detached from the social environment; it is in turn in a permanent evolution. Preventing the phenomenon should be a priority at all levels, which still does not happen. However, the aspect of crime prevention can be summarized in detail from both a criminological and a philosophical perspective, in order to understand the colossal importance of preventive measures.
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We begin our research from a methodological framework of a neotheoretical-linguistic nature of legal argumentation, which allows us to enter and show us theneed for a ius filosofar - which contemplates logos as a word and logos as a reason -, andthe neo-theoretical, finding in each one of them unions that allow the philosopher of legalscience to be able to propose a change in it through bridges between language and neotheoreticalphilosophy, which help the field of legal argumentation, based on social,economic reality , legal and political, which will generate an intertwining of the various areas,disciplines, subjects ... from a complex vision.
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Trapped in the world of philosophical ideals and in the embroidery of legal-economic thesis, the notion of human well-being has preserved over the millennia, a striking similarity with the present one. We all are able to identify it from a legal angle in the content of the mosaic elements that make up the fundamental right of modern man to a decent living standard and of course in the correlative obligation of the states. From a factual point of view, nowadays, when the future comes from the ballot boxes and the humanist concepts have transfigured the constitutions of the modern states, welfare remains, as in the past, a permanent and omnipresent challenge that, inherently, does not want to be easy conquered by man.
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Although the extreme oppressive regimes of the 20th century resulted in a gap between justice and law, the concept of justice is an inherent part of private law. Implementation and enforcement of corrective justice as well as distributive justice are the underlying policy of private law. Promoting social justice in contract law requires state intervention either via the court judgments or via statutory measures. Contracts create social relationships between individuals. This influences the changing role of the welfare state in private law relationships. An understanding of justice may be assessing it as a kind of mathematical truth. The structure of private law is similar to the system of mathematics, since both are built on axioms and conclusions that are drawn from a closed logical chain. The law, however, requires correcting the results of logic with social evaluation, if this is necessary in order to implement the values of the good society. This makes law an art rather than science.
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The state and law exist, both realistically in time and space and ideally as a set of pure ideas and values in time, as contents of consciousness and mental processes. Legal sciences fall into the group of social sciences. The cradle of legal sciences is ancient Rome. The subject matter of legal sciences is the study of law and the state, as closely related issues. They are divided into general (abstract) and subject-specific (concrete) legal sciences. The subject-specific legal sciences are further divided into positive-law and legal-history disciplines. The theoretical or abstract legal sciences study the law and the state in general; they include disciplines such as: Introduction to law, Theory of law and state, Sociology of law, Economics of law, Psychology of law, Political science of law, etc. Introduction to law has an interesting relationship with Philosophy of law and Legal philosophy. Introduction to law is a general, basic, and introductory legal discipline that provides experientially verifiable knowledge. Philosophy of law and legal philosophy provide trans-experiential knowledge, using methods such as: intuition, inspiration, revelation. Concerning relations with subject-specific legal sciences, Introduction to law derives from specific legal sciences, but it exceeds the scope of their subjecrt matt
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The empirical research of the communication process at the trials which were held in common courts indicated, in particular, that the utterances of trial participants, despite their varied verbal forms, were identified as procedural acts. In addition, these verbal forms were often significantly different from the explicit forms where proper legal terms were used. The aforementioned results of the analysis lead the author to pose the following question: what thought processes (mechanisms) allow for the identification of procedural acts based on the utterances which are not explicit for the performance of these acts. The aim of this paper is to describe these types of mechanisms. The utterances of participants of a trial illustrate the issues taken into consideration in this paper.
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The article aims to critically discuss the theory of animal rights developed by American social philosopher David DeGrazia. It consists of two parts. The first one describes the main elements of DeGrazia’s approach, namely his views on animal minds, the principle of equal consideration, the idea of unequal moral status, the concept of border persons, and practical remarks concerning improving the treatment of animals by humans. The second part presents remarks about the points where DeGrazia’s proposals should be supplemented and corrected so as to make them more convincing and widely accepted. The conclusion of the essay is the proposal of a cultural revolution for the benefit of animals, which should be initiated by famous people, like actresses, actors, sportswomen and sportsmen, because of their influential position in contemporary societies.
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The paper concerns the relation between argumentative and narrative features of legal texts and the question whether legal texts can be perceived as narrative texts. A narrative text is understood as transferring a story to the recipient through a given medium. The story, being the content of a narrative text, constitutes a specific way of manifesting the plot. The latter is a sort of internal logic of the story. The very same plot might be told in many different ways. Hence, the narrative text does not depict events directly, but through a story that requires a storytelling agent – the narrator. Certainly, there are different kinds of narrators, who can be more or less exposed within the text. In consequence, there are at least five positions concerning the relation between argumentation and narration in law: 1) sceptic – narration is a negation of the reasonableness of law; 2) narration is a structure of presentation of facts; 3) narration is a means of rhetoric persuasion; 4) narration is a meta-argumentative structure; 5) narration is a subject of critical analysis as it reveals the identity of an author. The theory of narration is applied to a particular problem of participation of professional self-governments in law-making.
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