Деклараторна теорія загального права: минуле та сучасність

Author(s): O. V Pushniak / Language(s): Ukrainian Issue: 18/2020

The aim of the article is to analyze doctrinal views on the role of judges in lawmaking in common law systems – in terms of declaratory theory of common law, including the transformation of views on declaratory theory, clarify its current meaning and place in the doctrine and practice of common law.The article provides the key provisions of the declaratory theory, criticism of supporters of law-making theory, as well as analysis of the views of opponents of the complete denial of the essence of this theory. Attention is paid to certain factors that contributed to the theory in the past - the role of customs and ideas of reason, justice in the history of the emergence and formation of common law. The connections of the given theories with different approaches to legal understanding are also shown.The author explores the modern attitude towards the declaratory theory and the possible practical application of some of its constituent ideas. In particular, it is analyzed to which extent the activities of modern judges continue to be and is seen as an application of the existing law, rather than as the creation of a new one. In this regard, attention is paid to the role of the law principles in the justification of court decisions. In addition, the use of retrospectivity of common law has been traced, which is widely believed to be a legacy of this theory.The article concludes that the statements about the attribution of declaratory theory to the past are categorical and exaggerated. Despite rejecting its key idea and acknowledging that the courts are in one way or another creating common law, it to some extent continues to retain its connection with the ideas of declaratory theory in a rethought form. This connection can be traced in the fact that the norms created by the courts are usually a moderate development of the current law, the specification of its principles, and thus have retrospectivity

Еволюция на теорията за източниците на правото през XIX и XX век

Author(s): Rosen Tashev / Language(s): Bulgarian Issue: 1/1997

Презумпцията в правото като способ на юридическата техника

Author(s): Dimitrina Milkova / Language(s): Bulgarian Issue: 1/2002

Фундаментално научно изследване

Author(s): Valentin Georgiev / Language(s): Bulgarian Issue: 6/2001

Предметът на философията и на социологията на конституционното право и необходимостта от нови конституционни принципи

Author(s): Georgi Boychev / Language(s): Bulgarian Issue: 5/2001

The article gives an estimation of the contemporary forms of constitutionalism and sets its future as a matter of discussion. In order to be able to offer a theoretical conception about constitutionalism of the future, the author defines the subject and content of the scientific destinations, known as philosophy of constitutional law and sociology of constitutional law. In a effort to prove the distinction of these two separate sciences, the author uses an institutional method of approach. On that basis reasons are given for the necessity of new and modern constitutional principles.

Обнова на юридическото образование

Author(s): Maria Slavova / Language(s): Bulgarian Issue: 5/2001

Оригинален принос в теорията на правото

Author(s): Stefka Naumova / Language(s): Bulgarian Issue: 4/2001

Основополагащ труд по социология на правото

Author(s): Rosen Tashev / Language(s): Bulgarian Issue: 6/2000

Съвременният правен позитивизъм

Author(s): Rosen Tashev / Language(s): Bulgarian Issue: 5/2000

The article explores the Modern Legal Positivism - one of the main strands of the Philosophy of Law. On the basis of the historical development (Early Legal Positivism, Normativism) and a comparative analysis (Natural Law Theory, Sociological Jurisprudence) the focus is on the three main features of the theory: primary and secondary rules, validity of legal norms and ,the open texture" of the legal texts.

Демокрацията като децентрализирано правосъздаване

Author(s): Daniel Valchev / Language(s): Bulgarian Issue: 4/2000

За изучаването на правна информатика

Author(s): Vihar Kiskinov / Language(s): Bulgarian Issue: 2/2000

Iregularity a překážky k výkonu moci ze svěcení

Author(s): Šimon Polívka / Language(s): Czech Issue: 82/2021

Irregularities and obstacles are statutory facts that prevent a candidate from receiving the sacrament of Holy Orders and an ordained minister from exercising the power of orders. Their number is determined by law. The right to grant dispensation belongs to the Apostolic See, not only in cases reserved to it, but also when the factual nature of irregularity has been the subject of court proceedings. In other cases, a dispensation is granted by an ordinary. In more urgent secret cases, the confessor, or any priest who has been authorized to hear confession, is entitled to mediate the granting of a dispensation.

LJUDSKO DOSTOJANSTVO I PROBLEM NEPRIKOSNOVENOSTI U PRAVU

Author(s): Duška Franeta / Language(s): Serbian Issue: 3-4/2017

Unantastbarkeit (die Unantasbarkeit ger. – „untouchableness“, inviolability) is a characteristic attributed to human dignity since the adoption of the German Basic Law. However, important bases of such guarantee are neither only legal, nor just related to the twentieth century. The first part of the paper delineates the presence of the characteristics similar to Unantastabarkeit in the history of the idea of human dignity, as well as its implementing (associated with the discussed feature) into law. Following this, the problem of Unantastbarkeit is presented as an inner tension of the concept of human dignity in law. There have been versatile attempts to interpret the meaning and the role of human dignity in law and at the same time to comprehensively address the problem of Unantastbarkeit. In recent years some of them emerged in different parts of the world, not only in Germany. In the second part of the paper, Waldron’s (Jeremy Waldron) understanding of human dignity as legal status is presented and discussed, particularly in the context of overcoming the mentioned tension of dignity in law.

The Systematization of Legal Values around Justice

Author(s): M. Isabel Garrido Gómez / Language(s): English Issue: 3/2021

This article underlines the centrality of justice when understanding it as an overarching value that globalizes and systematizes all the others. In particular, it analyzes what happens with legal security as a formal enshrinement of justice, and freedom and equality as its material manifestations. From this point of view, it becomes clear that the resulting systematization depends on the type of State currently in force. This is joined the diverse ways of understanding justice and the evaluation of the validity-justice relationship depending on the different ways of understanding it. Likewise, the ways of understanding the justice-law connection are linked to the concept of the Law that we uphold. Finally, it is concluded that legal operators are called to administer justice in a complementary regime, with legal security serving to reinforce freedom, as is the case with regard to equality.

X Zjazd Młodych Teoretyków i Filozofów Prawa „Teoretyczne i praktyczne aspekty wykładni prawa”, Szczecin, 24–25 maja 2021 r.

Author(s): Karolina Gmerek / Language(s): Polish Issue: 3/2021

AVUKATLIK KURUMUNUN TEORİK ve HUKUKİ GERÇEKLERLE ANLAŞILMASI ve ATANMASI

Author(s): Oğuzhan Uzar / Language(s): Turkish Issue: 51/2021

Purpose: The analysis of formation and realization of control systems in legal profession from positions of the system analysis and cybernetics. Methodology: The author applied a formal-legal method and a cybernetic method and a method of the system and structural analysis. Results: In article from positions of lawyer cybernetics and the theory of systems the analysis of formation and realization of control systems in lawyer systems is carried out to the modern period of time. During the analysis the structural problem which is in inconsistency of activity of separate elements of lawyer system is revealed that, can lead to violations in the market of rendering the qualified legal aid, and also a problem which is a consequence of the «vertical» organization of bodies of lawyer self-government, leading in some cases to a certain fight in the system. The conclusion is drawn that the special role when forming control systems in lawyer system in general is played by coherence of actions of all elements of the legal profession. Management process needs to be built taking into account opinion of the lawyer majority, and also taking into account the developed organizational structure, traditions, culture, the principles of historical features and expediency. Novelty/originality/value: In article for the first time in the scientific press from positions of lawyer cybernetics and the theory of systems, bases of formation and realization of control systems in lawyer systems during the modern period of time are analyzed.

THE LEGAL BALANCE BETWEEN LIBERTY AND EQUALITY

Author(s): Isabel Trujillo / Language(s): English Issue: 3/2021

The paper explores the specific legal balance between liberty and equality, distinguishing it from political theories and constitutional settings, where they are often considered in opposition. In order to find the specific legal balance between liberty and equality, and after identifying some of their relevant meanings for the purpose, it becomes necessary to focus on the rule of law, and to examine the relationship between liberty and equality in its different versions. Once the core meaning of the rule of law in terms of liberty and equality is enucleated, it is possible to consider extending it to the international field.

Visual as Multi-Modal Argumentation in Law

Author(s): Marko Novak / Language(s): English Issue: 1/2021

Although the legal context is a formalized framework, in judicial proceedings there is also room for multi-modal argumentation. To the traditional logical mode, multi-modal argumentation theory has added three additional modes (the so-called “alternate” modes: visceral, kisceral, and emotional). They complement the logical mode in unclear legal cases, those with vague and ambiguous premises (both legal and factual). What is discussed here is visual argumentation as part of the visceral mode. Visual arguments can be appropriate in legal argumentation as evidence used to determine the lower premise. However, “thick” visuals invite alternate arguments to be applied in legal argumentation. This “invitation” is not exactly the same as with “thick” verbal texts because what is at issue are different semiotic resources.

Adevăratele probleme de etică judiciară

Author(s): / Language(s): Romanian Issue: 3/2021

Amnestie bei Dostoevskij

Author(s): Sebastian Kornmesser / Language(s): German Issue: 38/2021

The term amnesty means the waiving of punishment (to a group of people) without, however, erasing the guilt. Amnesties are usually granted in connection with political events such as national or international peace amnesties in times of political change or wars. However, there are also waivers of criminal prosecutions, popularly known as "mercy before justice". Amnesties can therefore be seen, on the one hand, as a humane act of mercy, but on the other hand they can also cause problems in the population's sense of justice, since punishments are treated differently, and the principle of equality is shaken. The concepts of punishment, guilt and innocence, as well as their representation, offer a basis for the question of how amnesties are formed in Dostoevsky's texts. Dostoevsky's characters are usually ambivalent and challenge a reflective reading as well as an ethical judgement. By making social injustice an important theme in his texts, the author focuses on the restoration of justice through amnesty. A co-responsibility in society as well as a co-guilt in a higher sense form the core of his argumentation, both as a contrast to justice, which considers the guilt of the individual, and as a consideration of man's hereditary guilt and his responsibility to the community. A comparison with ancient Greek jurisprudence also shows that amnesties were closely connected with the collective, with emotion and ritual. This results in new ways of looking at prominent texts by Dostoevsky, as will be shown with the example of The Brothers Karamazov and other works. This will provide a brief overview of how Dostoevsky understands guilt and innocence, what function punishment has in his texts and how amnesty emerges as a result.