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This chapter explores the various legal responses to illiberal rule and the guiding rule -of - law principles in these times . The attempt to adhere to the rule of law during periods of political upheaval creates a dilemma
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The article focuses on the problem of the temporal effect of the rulings of the Constitutional Court of Ukraine declaring the unconstitutionality of legislation, in particular on the matter of retroactivity of such rulings. Based on the existing standpoints in the legal doctrine, the author has analyzed the legislation and legal practices of Ukraine, notably the practice of the Constitutional Court of Ukraine and the Supreme Court. In particular, the highest consideration is given to the established legal positions of the courts, which set up the non-retroactivity of the rulings of the Constitutional Court of Ukraine on unconstitutionality of an act of legislation. This position is based on the courts’ interpretation of Art. 152 of the Constitution of Ukraine as such, which makes it impossible for these rulings of the Constitutional Court of Ukraine to be retroactive. The article also examines the exceptions to this rule. The author notes the fundamental shortcomings of this position, whose categorical approach contradicts a number of fundamental legal principles. It unjustifiably prefers legal certainty, ignoring the requirements of justice, protection of human rights, equality, as well as a number of components of legal certainty or similar requirements of supremacy and direct effect of the Constitution of Ukraine, consistency of law, legality. The inconsistency of such position is also highlighted from the standpoint of the legal dogmatics and argumentation. In general, the decisions of the Constitutional Court of Ukraine and the Supreme Court on this matter do not contain any detailed or proper arguments. Meanwhile, there is a misinterpretation of the relevant provision of the Constitution of Ukraine as determining the direction of the temporal effect of the ruling of the Constitutional Court of Ukraine on the rights and obligations, when in fact this provision directly sets only the dates of invalidation of unconstitutional provisions. Under such conditions, the author states that the general principles of law, the current Constitution and legislation of Ukraine generally do not prohibit the retroactivity of rulings of the Constitutional Court of Ukraine on unconstitutionality of an act of legislation. Rather, they point at its necessity in many cases. At the same time, the author emphasizes the need for a more flexible approach to determining the directions of the temporal effect of rulings of the Constitutional Court of Ukraine.
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Along with the legal opinions, the juristic proofs presented to underpin these legal opinions also occupy an important place in uṣūl al-fiqh. Thus, scholars of uṣūl al-fiqh strived to propound the proofs indicating the relevant theoretical principles in an apparent and definite way. As a result, the disputed and undisputed proofs ranked among al-adilla al-shar‘iyya have been abundantly addressed in the classical uṣūl al-fiqh works. However, although it is not mentioned as a part of legal sources in the uṣul literature, there has been another proof subjected to legal reasoning (istidlāl): the practice of the companions. In this study, “the practices of the companions” is used in the contextual meaing of the verbal and practical positions of the entire companions or some of them on a specific topic of uṣūl al-fiqh. By this definition, the concept of the practice of the companions is separated from the concepts of qawl alṣaḥābī, ʿamal ahl al-Madīnah and the ijmāʿ al-ṣaḥābah. As a matter of fact, the concept of qawl al-ṣaḥābī signifies an opinion narrated from a single companion and neither supported nor opposed by other companions, and subjected to use of legal inference for obtaining practical legal rulings. In return, the concept of the practice of the companions signifies the position that the companions hold on a topic of uṣūl al-fiqh and does not stipulate the conditions that it must be an opinion of a single companion and be neither supported nor opposed by other companions. In addition, as being related to the legal theoretical issues and not restricted to a certain region, the concept of the practice of the companions is distinct from the ‘amal ahl al-Madīnah. Likewise, it also differed from the ijmāʿ al-ṣaḥābah because the latter concept indicates the consensus of all companions on a practical legal ruling whereas the practice of the companions amounts to both the consensus of the companions and their individual opinions on the matters of uṣūl al-fiqh. Having said that, the concept of the practice of the companions has some overlaps with the qawl al-ṣaḥābī and ijmāʿ al-ṣaḥābah. It is observed in the Hanafi tradition of uṣūl al-fiqh that the practices of the companions are presented as a proof of many principles of uṣūl al-fiqh. This is because of the fact that the companions have a significant role as being the first practitioners of the revelation and the leading figures of the tradition of fiqh. Due to these significant roles of the companions, a central position is given to their interpretation method of the divine text and the technique of issuing legal opinions in determination of theoretical principles. In this study, I examine the impact of the practices of the companions on the Hanafi legal theory focusing on the work of al-Sarakhsī (d. 483/1090), al-Uṣūl, and try to identify how Hanafi legal theory was grounded, departing from, overall or particular, companions’ practices. This study consists of two main parts. First, I provide the conceptual framework by analyzing the concepts of the companion and the companions’ practice. Second, I discussed the theoretical issues rested evidentially on the companions’ practice. Hence, this study excludes the instances of qawl al-ṣaḥābī, ijmāʿ al-ṣaḥābah and the companions’ practice if they are not resorted in proving the uṣūl al-fiqh principles. This work deals with issues on which theoretical principles grounded in reference to the practice of the companions under the headings; Kitāb, Sunnah, qıyās, naskh and alfāz. When instances of the companions’ practice are in abundance in a case, I just focus on the highly representative ones and shortly refer to the others. In the conclusion part, I provide the consequences achieved by this research and some final remarks on the topic.
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Majalla al-Aḥkam al-‘Adliyyah, which is the first example of codification based on Islamic law, has been the subject of criticism from different angles in terms of its preparation and content. The main reasons for criticism are following the casuistic method, being limited to the Hanafi sect, and therefore, the regulations on some issues not meeting the needs of the period, and the lack and excesses that do not comply with the content of the civil law. The commentator of the Majalla, ‘Ali Ḥaydar Efendi, also criticized Majalla from different angles. In this study, it was aimed to identify, describe, and classify Ali Ḥaydar Efendi's critics of the Majalla, and -with some exceptions- no evaluation was made about the criticism of the commentator. Ali Ḥaydar Efendi, the author of the most comprehensive and famous commentary of the Majalla, Dureru'l-hukkâm, criticized the Majalla both in terms of law technique and content, justified his criticisms, and offered alternative suggestions regarding the issues he criticized. Although Ali Ḥaydar Efendi criticized an item for only one reason, he criticized some items from more than one point of view. In the article, each of the criticisms of Ali Ḥaydar Efendi on the Majalla’s items is discussed under a separate heading, and the items criticized from more than one point of view are discussed under a separate heading and exemplified as much as possible. His criticisms of the Majalla in terms of law technique are as follows: The statements of the items are prone to making wrong judgments, not of a general nature, the concepts are not used appropriately, both the concepts and the items are not compatible with each other and with the fiqh books, having some missing, unnecessary or incorrect statements in the items, and the lack of records in the statements. Among the criticisms made in terms of content, first of all, the fact that the provision contained in the article is contrary to the ruling in the fiqh books or the view of the sect should be mentioned. Some of the criticisms in terms of content are related to the preferences made while preparing the Majalla. In this context, it has been the subject of criticism that some of the preferred views are not suitable for the needs of the period or the preferred view in the madhhab, conflicting between preferences from time to time, and not making a choice in some controversial issues. The existence of provisions that do not comply with the requirements of the time, and the asl-far' incompatibility is another reason for criticism. In such criticisms, the suitability of the content of the law with the madhhab books in various aspects has been tried to be revealed, and inappropriate aspects have been criticized. However, ‘Ali Ḥaydar Efendi also pointed out that the text of the law should be prepared by making use of the provisions of different madhhabs, since it does not meet the needs of the time, although it is in accordance with the provisions of the madhhab. ‘Ali Ḥaydar Efendi also criticized the Majalla in terms of missing some issues or not being regulated sufficiently, and included provisions regarding the qarḍ contract and crimes against animals, which were not dealt with even though they should have been included in the Majalla. However, he never touched upon the subjects of consumption and ribā, which were not dealt with in the Majalla, although they should have been. ‘Ali Ḥaydar Efendi said that there is a deficiency in the items dealing with subjects such as luqata and hacr, since some conditions regarding these issues are not included. ‘Ali Ḥaydar Efendi also criticizes the Majalla in terms of the contradiction between the provisions contained in the items; the lack of unity in language, style and terminology among the items; and unnecessary repetitions both between the items and within the items. ‘Ali Ḥaydar Efendi, who did not make any criticism about the repetitions due to the fact that the Majalla was prepared with the casuistic method, justified or criticized the other repetitions and offered suggestions to avoid such repetitions. Also, according to him, there are deliberate repetitions in the Majalla. In addition, he also criticized the Majalla from a systematic point of view, such as the incompatibility of the title and content, the arrangement of similar subjects in different chapters/items/paragraphs, or the handling of different subjects in the same chapter/item/paragraph. Another criticism of ‘Ali Ḥaydar Efendi about the Majalla is about definitions. He criticizes the definitions made as not being collectively exhaustive, mutually exclusive and not being in the definition technique such as the tautology, but also on the grounds that it is not comprehensive, contrary to the method followed in other definitions made in the Majalla, and not being included in the fiqh books.
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One of the most important issues in Islamic law is that either partially or completely, or temporary or permanently, a rule can be changed for a particular group of people or everyone. Since the concept of necessity can lead to a change of an important rule like ḥarām/prohibition, this concept should be examined meticulously both in theory and in practice. The thşs study aims to analyze how and why necessities make some ḥarāms permissible and to reveal the ultimate cause for this ibāḥa (permission) from the point of view of Islamic legal theory and philosophy. To achieve this aim, first, the nature of the relationship between the prohibition and the act is examined. To understand how and why necessity gives permission to some ḥarāms, it is necessary to determine the changing and unchanging elements in the case at issue. In the case of necessity, there is no change in the nature of the act and the evil, which is considered as the reason of banning. Indeed, there is a change in the conditions surrounding the act and in the state of the obligated person. However, the main factor that enables the change in ḥarām is the change in the addressing of Shāri‘, who takes into account the changes mentioned. It is seen that the changes stemming from necessity do not lead to the same results as in all permitted ḥarāms. This observation requires a thourgh examination and elaboration on what the scholars of legal theory mean by abolition of prohibition and turning it into permissible. As a result, it has been observed that permitted ḥarāms do not equally function in terms of turning into permissible and that they do not have an equal effect on other acts in the field of mubāḥ. In that case, it is possible to evaluate the permitted ḥarām acts as al-maʻfuw ʻanh/forgiven acts. Although the act could be considered part of the category of mubāḥ, it would be more correct to place them close to the line of makrūh. From the point of view of the servant, the reason why necessity makes a ḥarām act permissible is the priority of avoiding greater evil. However, to reveal His sincere servants, Allah's command to them to avoid all ḥarāms even if they die, does not contradict with His wisdom. For this reason, the ultimate cause why Allah considers the case of necessity in passing judgment is His endless mercy. All these points helped reaching some broader conclusions about legal theory, as well as some conclusions specific to the case of necessity. It turns out that to understand how necessity makes some ḥarāms permissible, one needs to comprehend the relation between the act, the obligated person, the conditions surrounding them and the Shari‘ correctly. Understanding this relationship well is also extremely important to understand the theory of ruling and the Islamic legal theory. This research has substantiated once again that the issues addressed by the Islamic legal theory and practice are linked to the theological doctrines, more than, it is commonly perceived or considered. It turns out that it is important to know the deep or subtle differences between the terms such as ḥarām-ḥalāl, maḥẓūr-ḥarām, mubāḥḥalāl, fundamental mubāḥ-ma‘fuw ‘anh, etc. as well as grasping each of the rule categories. Comprehending all these concepts constitutes an important step in acquiring a true understanding of religion and the maqāṣid al-sharī‘a. In this research, it has been proven once again that each category of the rule includes different levels of ruling in itself. The reason why the acts are categorized in different levels even if they are in the same rule category is the concepts of worldly and otherworldly; evil or good arising from the the ḥarām act. This study also confirmed that the obligated person is at the center of the law. This fact reveals how difficult it is to argue that the rules of Allah are based on divine will that is independent of and disregards the act, obligated person, and conditions. On the contrary, it is understood that the interests of the servant are considered both in the rules of necessity and in the whole of the divine legislation (and even the genesis). On the other hand, this indicates a legal system that is not inflexible and dull, but rather dynamic and parallel to life. Both the fact that the real and absolute source of the rule is Shāri‘ Almighty,and that a very large area of legislative was left to the mujtahid should be considered together. This truth has been observed once again in the matter of making prohibitions permissible on the basis of necessity, and the task of determining which evil is greater was often left to the mujtahid’s consideration.
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In this study, the classification of Zaydī fuqahā’ that emerged in the mutaaḫḫirūn period of Zaydī fiqh and related terms are examined. The book named Bulūgh al-arab wakunūz al-dhahab fī-maʿrifat al-madhhab, which has great importance among the studies aiming to present the Zaydī fiqh accumulation as a uniform doctrinal structure was taken as a basis in the processing of the subject. After an introduction in which Zaydī fiqh studies are evaluated in their relationship with the subject, the issue is addressed under three main headings. In the first title, the author and his work are introduced, and in the second and third titles, the methods and terms used in the classification of the Zaydī fukahâ are examined. The author of the work is ʿAlī b. ʿAbd Allāh al-Shaharī (d. 1190/1776) who lived during the period of the Qāsimī dynasty (al-dawla al-Qāsimiyya) in Yemen. The most important characteristic of this work, which was prepared by using many important sources in the Zaydī literature, is that it was the most comprehensive study written on madhhab doctrine until then. The first part of the work explains that the right madhhab to be followed is Zaydiyya. In the second part, the classes of the Zaydī fuqahā’, which is the subject of our study, are explained. The fuqahā’ classes are primarily divided into two parts: al-salaf al-ṣāliḥīn and al-ḫalaf al-ṣāliḥīn. The first dates back to the beginning of the 3rd/10th century. This class is divided into two parts, as al-sābiqūn and al-mutaaḫḫirūn. The sābiqūn starts with ʿAlī b. Abī Ṭālib and his two sons al-Ḥasan, and Ḥusayn, and ends with the sons of twelve imams who are their descendants. Zayd b. ʿAlī (d. 122/740) is one of the twelve imams. The most important of the faqīhs in the part of mutaaḫḫirūn, which started with al-Qāsim b. Ibrāhīm al-Rassī (d. 246/860), are the six imams called ahl-al-nuṣūṣ or aʾimma al-nuṣūṣ. The reason why they are named as such is that their words were taken as a basis in determining the views of the sect on the field of uṣūl and furūʿ l-fiqh. al-Qāsim al-Rassī is at a point where all the knowledge of the Prophet's family and the principles agreed upon by sābiqūn, reach him through many channels. al-Hādī Yaḥyā b. al-Ḥusayn (d. 298/911), grandson of al-Qāsim, is the most important imam in terms of his position in the madhhab. The ḫalaf al-ṣāliḥīn is also divided into two parts as ahl l-taḥṣīl and ahl l-naẓar. The first part also referred to as muḥaṣṣilūn or aʾimma al-taḥṣīl, has no subcategories. The second part is divided into two sub-sections as ahl l-taqrīr and mudhākirūn. The muḥaṣṣilūn class starts with those who catch up with the last class of ahl al-nuṣūṣ and ends with ʿAbd Allāh b. Ḥamza (d. 614/1217), one of the three important imams. Two other important imams of muḥaṣṣilūn are Aḥmad b. al-Huṣayn (d. 411/1020) and his brother Yahyā b. al-Husayn (d. 424/1032). It is the fiqh activity of the jurists of this class, called taḥṣīl lmadhhab, that brought Zaydī fiqh, which was fiqh of imams (madhāhib l-aʾimma) in its first period, into a single madhhab and to its classical form in the last period. Mudhākirūn jurists lived at the same time as the ahl-t-taqrīr. This period is about 700 years from the beginning of the 6th/12th century, which is the last century of the muḥaṣṣilūn class, to the end of the 12th/18th century, when Shaharī lived. The roles of the ahl al-taqrīr in the madhhab mostly consist of reviewing the works of the ahl-l tahṣīl, approving the correct ones, and correcting the wrong ones. That's why they are so named. The author of Kitāb l-Azhār, Aḥmad b. Yaḥyā l-Murtaḍā (d. 840/1437), is one of the prominent jurists among the ahl l-taqrīr. The majority of Zaydi fuqahā’ belongs to the muẕākirūn class. These are the lowest class of the ahl-al-naẓar. As an important result reached in the study, it is possible to state the following: There is a difference between some of the knowledge and opinions in modern Zaydī studies, which include the same subject as Shaharī's work, in terms of the classification of Zaydī fuqahā’ and the terms used. Therefore, the findings and conclusions based on this work should be confirmed by new studies on other Zaydī classics, and existing opinions on Zaydī jurisprudence should be reviewed.
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The presented publication is a review of the monograph by Bolshakov E. V., Nazarov I. D., devoted to the study of the philosophical and legal aspects of the phenomenon of justice in the history of social thought. Giving a high assessment to the philosophical and legal basis of the study and the list of scientific sources used, the author of the review notes the development of an ethical and philosophical definition of the concept of “justice” as an important result of the work. Analyzing the definition proposed by the authors of the monograph, the author of the review agrees with the argument that the goal of justice is the realization of the idea of justice, which is the main idea of both legal and moral consciousness. The implementation of this idea within the boundaries of moral consciousness is experienced, comprehended and evaluated as an individual and public good. The reviewer emphasizes that the research work carried out by the authors allows us to draw four conclusions that are significant in theoretical and practical terms. Despite the overall positive assessment of the monograph, the author of the review notes a number of shortcomings in it.
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The present study proposes an analysis of the concept of property in the light of its biblical roots. While today we are influenced by the mentality that goods belong to the sphere of our rights, Scripture looks at this subject from the perspective of some duties as well. Closely related to the concept of private property is that of human dignity, given that all our rights have emerged to defend our dignity. In this context, it is necessary to show that the ownership of the property comes with responsibilities. That is why we will argue that the right to private property is both a means of protection established by God and a means by which we are tried, and an expression of divine blessing.
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When the illative sense is affected, judgement is deffective. This leads to a corrupt logic, which is suitable to the unregenerated person, reflecting a wrong worldview. The key for understanding correctly the human rights depends on an illative sense that is not twisted by wrong morals. In this paper I relied on Cardinal Newman’s understanding of the illative sense, and I showed that there is a strong link between this sense and the knowledge of God, from which we can infer the alleged human rights. Human rights depend on knowing the origin of our nature and on realizing that as believers we are both dependent on God, and sinners going through a process of mortification and sanctification.
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One of the main characteristic of modernity is the substitution of the classical natural right with the modern natural right, as Leo Strauss puts it. The main differences of the way of thinking the natural law pertains to the way the human being and its relationships with the nature and fellow humans is conceived. The modern natural right denies that there is such a thing as a purpose of man or that nature has purposes and substitues rights for duties. It also bypasses the idea of virtue. Man has inallienable rights but no duties. The basis of such a right is hedonistic and tries to ground the existence of society and state in the will of the people and in an alleged social contract. The existence of society and state it is only a means to realize selfish and hedonistic ends, there being no hierarchy between the different desires or a qualitative difference between them as it was in the classical natural right.
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One of the main characteristic of modernity is the substitution of the classical natural right with the modern natural right, as Leo Strauss puts it. The main differences of the way of thinking the natural law pertains to the way the human being and its relationships with the nature and fellow humans is conceived. The modern natural right denies that there is such a thing as a purpose of man or that nature has purposes and substitues rights but no duties. The basis of such a right is hedonistic and tries to ground the existence of society and state in the will of the people and in an alleged social contract. The existence of society and state it is only a means to realize selfish and hedonistic ends, there being no hierarchy between the different desires or a qualitative difference between them as it was in the classical natural right.
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The topic of the impact of artificial intelligence on law, the legal profession and legal culture, in general, has not yet been sufficiently discussed in the Croatian scientific community. This paper aims to encourage a more comprehensive analysis of the relationship between the increasing use of artificial intelligence in our daily lives and the specifics of practising the legal profession in such an environment. Artificial intelligence is still a broad and heterogeneous field. It is therefore justified to ask the question: Which of the many technologies currently being developed can be applied in the field of law? Which legal matters can be “entrusted” to the new technologies? To answer such and similar questions, it is necessary to have an excellent knowledge of both artificial intelligence and the law, as well as the areas in which they intersect. We have chosen criminal law, which is a part of public law and the ultimate social mechanism for responding to undesirable behaviour, as our object of study. We pay particular attention to its two important aspects: the element of culpability in a criminal offence and the possibility of autonomous decision-making in criminal law. The reflections have shown that Croatian criminal law may have the ability and potential to adapt to the challenges of artificial intelligence when it comes to culpability.
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Economic human rights can be considered as fundamental rights that characterize the wellbeing of the person, the state of attachment of the individual characterized by a full economic satisfaction that allows him to assert himself both as a separate subject and as a collective member of a community organized by people, whereas fundamental human rights as subjective rights of citizens, essential for their life, freedom and dignity, indispensable for the free development of the human personality.
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The figure of John Dewey is considered one of the most influential in American philosophical and pedagogical thought of the 20th century. In the course of our research, we used materials about the scientist, referring to the works of American researchers John Dewey – Hook S. [1], Coughlan N. [3], McDermott D.J. [2], Shilpp P.A. [8], Ryan A. [4], Rockefeller S. [5], Westbrook R. [6], Dunhuizen J. [7], which have not been translated into the Ukrainian language, which allows us to understand more profoundly and perceive the life of a prominent scientist. These works analyze and describe the multifaceted life, creative work, ideas, primary works, and principles of John Dewey’s philosophical, social, political, and pedagogical activity. John Dewey had a great thirst for knowledge. Thanks to his perseverance and intelligence, he analyzed what society and science needed. We believe that his natural intelligence and the right intellectual environment shaped him into a great intellectual. This article will explore how studying at the University of Vermont contributed to this.
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In the nowadays research about medieval philosophy and theology it is admitted that the augustinian and aristotelian traditions were the two main trends in the theory of dominium. then, to obtain a certain model of medieval dominium, it depends on which order the relation between both traditions relies: for while the augustinian model remarks the question of prop- erty, the Aristotelian one puts the question of power in first place. It is not hard to admit that within the works of thomas aquinas, according to a rational explanation, the explanations of aristotle are preferred over that of augustine. Now, it seems that aquinas’ theory of dominium not only derives from aristotle, but also from the justinian’s Corpus iuris civilis and its italian glossators. So, in order to discuss the augustinian medieval theory of dominium, aquinas not only has turned to the Greek philosopher, but also to the Roman juristic tradition.
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The article considers the notary as a subject of active influence on the formation of postmodern democratic legal society, mediation of law in postmodern society. The constitutional definition of the state in this status does not mean that the civil law consciousness prevails in all spheres of its life. Since no person in society does not need this type of legal service, it is quite objective to consider this community as a subject whose activities should be considered as a subject of formation not only of legal consciousness of society but also a leading subject of civil society. This primarily applies to private notaries, who, unlike public notaries, are fully responsible for the results of their activities. After all, a legal duty is organically combined with the responsibility from which the public notary is released. The study of the manifestations of the phenomenon of postmodernism is relevant to many disciplines, including - the philosophy of law. Modern research shows that classical types of legal understanding do not satisfy the understanding of postmodern law, which indicates the need to find a fundamentally new concept of law. The author concludes that the solution to this problem should be sought in the field of theories that offer new approaches to the interpretation of legal texts; this area is considered the most promising.
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The study carried out is intended to inform the interested parties about a part of the contributions of some Romanian thinkers to the promotion and development of the theory and philosophy of law in our country, over the last hundred years. For the purposes of the above, we considered helpful to present these contributions by three temporal pillars: the inter-war period, the post-war period and the modern times. The inter-war period – times of freedom and creative exuberance in all social fields – brought an increased doctrine concern, among others, in relation to the theory and philosophy of law. Thinkers, such as Al. Oteteleşanu, Petre Andrei, Ioan Petrovici, Dumitru Drăghicescu, Andrei Rădulescu, Petre P. Negulescu, Radu Goruneanu, Gh. Băileanu, Traian Ionaşcu, Octavian Ionescu, Petre Pandrea, Alexandru Văllimărescu and, especially, Eugeniu Speranţia and Mircea Djuvara, by their writings, kept pace with the thinkers of those times, giving – to the consistent questions over the merits, role and purpose of law in the society – adequately substantiated and relevant answers. After the Second World War, under other – unfortunately – social and political and ideological conditions of the development and affirmation of the Romanian science, they found the necessary resources for keeping and developing specific concepts of the theory of law of Prof. Ioan Ceterchi and Prof. Gh. Boboş, together with many other authors, who have not been examined in this study (yet). In the modern times, mainly after 1989, valuable doctrinaire concepts emerged in Romania, originating from the examined field. Among the most illustrative authors, we may list: Nicolae Popa, Ion Craiovan, Sofia Popescu, Gheorghe Mihai, Ioan Humă, Gheorghe Dănişor. Their studies emphasized creative concepts in law, such as: the concept of the objectives of law, the complex referential concept over the philosophy of law, the cultural and legal itinerary as a structural factor in setting up and developing legal thinking, the visibility and pervasiveness of the concept of integrative legal knowledge, the set up of the concept of legal thinking, the working-out of a research program likely to promote the affective paradigm in law and so on. To conclude, it may be stated that the famous Romanian thinkers did their duty and continue to do their duty, keeping pace with other elite thinkers of the world, significantly contributing to the promote and develop the theory and philosophy of law.
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Particular attention in this research is paid to the regulation of property relations arising after the death of the testator in the Statute of Cres-Osor. The provisions regulating inheritance relations among family members in the content of this source confirm the importance of the family as a community as well as the importance of family property within this late mediaeval commune. In this regard, the Statute of Cres-Osor shows specific features. The equality of male and female descendants when it comes to intestate inheritance is marked by the inher- itance regulation of the rare communes of the Kvarner region, including the Cres commune. In this regard, it is important to determine the position of women in marriage and family. In a period when under the influence of the reception of different legal sources, primarily of the Venetian and Byzantine ones, most Adriatic communes adopted almost identical features of inheritance law, in which the inheritance of family property is linked to a certain degree of kinship. The Statute regulated testamentary freedom and free disposal of property according to the will of the testator or for religious purposes. As the systematic analysis of the legal provisions of the statute is merely the subject of the discussions in academic community, a detailed analysis of hereditary relationships regulated by the provisions of this source will cer- tainly contribute to understanding of the legal reality of this mediaeval island commune. This research conducts a detailed analysis into the legal source, and compares specific provisions of other close communes in order to analyse inheritance by will and intestate inheritance reg- ulation as well as other important issues such as the position of certain categories of heirs. Moreover, it aims at detecting the origin of a separate regulation of hereditary relations in this island community.
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egel’s Philosophy of Right openly proclaims itself to be a work without a political agenda, an interpretation of politics rather than a political project. This essay contends that Hegel’s decision to locate the universality of the state as the culminating point of the political structure represents itself a political intervention that occurs through the act of interpretation. Hegel’s analysis of the relationship between capitalism (or civil society) and the state reveals that we must adopt the perspective of the state when looking at capitalist society. By doing so, we can recognize the political exigency of moving from capitalist particularism to the uni-versality of the state form.
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Aristotel a folosit expresia „justiţie vie”, Cicero, în „Despre legi”, spunea că „legea vorbeşte”, iar Eugen Herovanu, marele nostru procedurist, afirma, în prefaţa la „Tratatul teoretic şi practic de procedură civilă” (1926), că „procedura civilă oferă elementele simple al unui «drept viu» legat de sursele lui naturale şi de «mişcarea vieţii»”. Metafora «dreptul viu» a fost însă introdusă în doctrina juridică de austriacul E. Ehrlich, unul dintre fondatorii sociologiei juridice, iar, în a doua jumătate a secolului al XX-lea, o găsim în unele decizii ale Curţilor Constituţionale din Italia şi Franţa, în jurisprudenţa CEDO, prin afirmarea principiului interpretării evolutive şi contemporane a normelor juridice, preluat în ultimii ani, şi în jurisprudenţa CCR”.
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