The role of law as an instrument of communication within legal positivism

Author(s): Claudiu Ramon D. Butculescu / Language(s): English Issue: 10/2015

This article tackles some aspects concerning the role of law as an instrument of communication from the perspective of legal positivism. The paper presents considerations regarding law communication in relation to legal positivism and scientific positivism. At the same time, the article examines the correlations between the legal communication models and the various inclinations developed under legal positivism. Both within legal positivism and the scientific positivism, the role of law as a communication tool is essential. The concept of legal communication should be considered as the idea of understanding the legal norm by the recipients of law, namely by persons and also acceptance of these rules in order to respect them. Also, clarity and transparency in law communication are very important elements that contribute to the way in which legal standards are received. The analysis of legal communication from the perspective of legal positivism presents a special scientific interest, given the very essence of positivism, namely that the laws are commands of the human being. Thus, it is important to analyze communication patterns that can be applied in the positivist orientation to consistently appreciate the ways in which legal communication can be improved.

Ustavna teorija u doba krize: Moć, pravo i moral

Author(s): Nenad Dimitrijević / Language(s): Serbian Issue: 86.32/2016

Postmodernizacija (i kriza) prava: pravni sistem i pravna država u „vrlom novom svijetu“

Author(s): Benjamin Flander / Language(s): Bosnian Issue: 1/2015

In the past few decades, due to far-reaching social changes caused by globalization and postmodernization, modern law and legal systems have changed significantly. Generally speaking, law has become less general, systematic, and hierarchical since the basic structural features of modern law changed. New principles of the functioning of the legal system have taken advantage over the previous ones, i.e., instead of a public law model, a private law contracting model has established itself as the dominant way of regulating social relations. Moreover, the boundary between public and private law has become less clear, and new legal concepts, institutes, and disciplines have occurred while those which prevailed throughout the modern legal tradition have changed significantly. Postmodernization of law, among other things, brings a lot of negative “crisis” transformation, among which those worth mentioning are the spread of the neo-liberal law-and-order legal ideology and politics, the degradation of fundamental principles of the rule of law, changes in substantive and procedural criminal law for the sake of fast, efficient, and economic prosecution of criminal suspects, the breakdown of the (law of) welfare state (the latter being transformed into penal state), privatization of justice (e.g. judicial services), excessive juridization of social relations, and the transformation of legal subjectivity. In many important aspects, the postmodern transformations have taken contemporary law and legal systems back to the times of the early classical liberal legal system of the 18th and early 19th centuries. The author argues that, in the process of their integration to European Union and the legal reform according to the European standards, the states should take into account the broader historical context of this process: the social and legal postmodernization which gave the law and legal system a new postmodern identity, on one hand, and the crisis of the concept of the rule of law, on the other.

Concepția politico-juridică a lui Montesquieu

Author(s): Paul I. Demetrescu / Language(s): Romanian Issue: 1/1955

Classical Social Theory and Ideas of Responsibility and the State in France and Germany

Author(s): Roger Coterell / Language(s): English Issue: 1/2013

Social theory can aid comparative legal studies by revealing currents of social ideas in which law develops. A comparison of major contributions to French and German social theory between the mid-nineteenth and the early twentieth century presents striking contrasts in understandings of the nature of legal responsibility and the function of the state. It shows two different movements of thought: one elaborating a view of law mainly as a technology of government overseeing and co-ordinating individual interests; the other emphasising the law’s importance in nurturing social solidarity and facilitating collective responsibility.

Jurydyzacja życia a skuteczność prawa

Author(s): Marcin Hotel,Aleksandra Rychlewska / Language(s): Polish Issue: 1/2015

Social life nowadays is immersed in legal concepts as it has never been before. Most decisions taken are pre-analyzed on the ground of rights and duties. It means that less important is question, whether an action is moral than whether an action is legal. Remedy for all problems is a new bill, as if the written words could actually change the world around. It leads to high inflation of law that in most cases is not recognized by the society. Authors of this paper aim at closer inspection of this issue and try to compare it with the problem of efficiency of law. Bearing in mind that written law has its values and cannot be totally erased a question that should be raised is whether there are different methods of “finding a norm” for a case that was not previously regulated. The authors propose analogy as an equivalent for inflation of law and analyze pros and cons of such an approach.

Legal analogy as an alternative to the deductive mode of legal reasoning

Author(s): Maciej Koszowski / Language(s): English Issue: 6/2016

This article demonstrates the inadequacy of legal deduction as a method that guarantees the certainty and predictability of law and its outcomes in concrete instances. Inter alia, the Author brings our attention to the far smaller role that the deductive pattern of inference plays in legal thought than one may suppose, since it is rather only a schematic illustration of the decisions that were previously made by recourse to the mental operations of a non-logical nature. In return, he proffers legal analogy as an alternative, by which he understands a mode of thinking which helps the reasoner to take into account a mass of different factors that are traditionally deemed to be relevant for legal thought and decision-making

Zastosowanie probabilistyki w analizie zakresu zastosowania normy prawnej. Wstęp do dalszej dyskusji

Author(s): Wawrzyniec Serafin / Language(s): Polish Issue: 2/2015

The paper shows general concept of use of probability theory methods in analysis of legal norm application scope understood as class of events to which given legal norm is applicable. Proposed solution assumes that application scope can be regarded as event, thus it is allowed to calculate probability of such an event. Indictation of probability of event, which is application scope of given legal norm enables to verify in objective manner how common shall be application of given legal norm. That kind of information may improve legislative process due to selection of legal norms, which shall found limited application and which entail merely overproduction of law, which is particularly important taking into account vast numbers of enacted legal acts.

Kritika ideologie u Hanse Kelsena

Author(s): Clemens Jabloner / Language(s): Czech Issue: 4/1995

V centru Kalsenova vědeckého díla stojí vypracování ryzí nauky právní. Kelsenův přínos ke kritice ideologie a "učení o názoru na svět" nestojí v žádném případě beze vztahu vedle (k) právnického-juristického díla, nýbrž slouží v systémové souvislosti k tomu, aby dal ryzí nauce právní vědecko teoretický a vědecko historický základ. Jako spojující prvek, se při tom jeví pokus o "konsequentní ne-metafyzickou právní teorii" (H. Dreier).

Úloha práva: k významu práva v moderní společnosti jako garance společenské jistoty v napjatém vztahu mezi etikou a technikou

Author(s): Lothar Kuntz / Language(s): Czech Issue: 4/1995

V uvedeném příspěvku je věnována pozornost změněným požavkům, které jsou kladeny na tradiční pojetí práva, a které bychommohli označit i jako postmoderná.

A méltányosság fogalma, funkciója és rendszertani elhelyezése a magyar magánjog általános elvei körében

Author(s): József Benke / Language(s): Hungarian Issue: 2/2021

The paper summarises the sources, functions and species (types) of Hungarian private law’s general principles. It emphasises that the non-legal basis thereof consists in the Common European Cultural Heritage (as Greek philosophy, Roman law, Judeo-Christian religious tradition, Humanism, Enlightenment). Thereafter, the contribution analyses the interdependence and mechanisms of action of the governing principles of Rule of Law and Justice. The study shows that, on the one hand, among homogeneous relationships and circumstances, Justice operates as the Rule of Law, while, in heterogeneity, it is the Equity, which performs the Rule of Law by means of correction of Justice: Both Justice and Equity guarantee the perpetuance of Rule of Law, which has a certain predominance according to the previous two principles. The article presents how these governing principles bind and oblige legislation, application of law and subjects of law (persons) as well. In a critical approach, the paper defines Equity as it is a governing principle of Hungarian private law obliging legislation and jurisdiction in different manners for guaranteeing Rule of Law by a correction of Justice through a one-sided preference resulting from judicial discretion based on statutory mandate for the purpose, on the one hand, of the shield those worthy of protection, and, on the other hand, in special and extraordinary cases, in order to grant derogations from the general norm within the very provisions of certain regulations.

Nos moutons și lumea dreptului

Author(s): Valentin Constantin / Language(s): Romanian Issue: 8/2022

Nu de puține ori, dl Sever Voinescu atacă frontal problemele importante ale zilei. Am decis să intru în discuția deschisă de domnia sa nu pentru că problema m-ar fi preocupat în aceste zile, ci pentru că nu am dorit ca încă o critică importantă să rămînă, în absența dezbaterii, o incantație în deșert

AI-Based Decisions and Disappearance of Law

Author(s): N. I. Satokhina,Yulia Razmetaeva / Language(s): English Issue: 2/2022

Based on the philosophical anthropology of Paul Ricoeur, the article examines, using the example of AI-based decisions, how the concept of responsibility changes under the influence of artificial intelligence, what a reverse effect this conceptual shift has on our moral experience in general, and what consequences it has for law. The problem of AI-based decisions is said to illustrate the general trend of transformation of the concept of responsibility, which consists in replacing personal responsibility with a system of collective insurance against risks and disappearing of the capacity for responsibility from the structure of our experience, which, in turn, makes justice and law impossible.

The General Concept of Public Policy and Law

Author(s): Gauri Nirwal / Language(s): English Issue: 1/2022

This paper provides insight into the concept of public policy and its relationship to the law. The purpose of this paper is to describe how public policy is applied in the legal world, particularly in the field of internal commercial arbitration. The paper identifies the public policy dynamic and its applicability in various jurisdictions. The major issue confronting countries that use arbitration as a dispute resolution mechanism is the defence of public policy and its ever-changing complexities. The public policy process is said to be versatile since it operates under a variety of social, political, and economic situations. The guiding role of public policy forbids regulatory authorities from enacting legislation against it. This study uses a literature analysis to assess and draw conclusions about the general concept of public policy and law.

Selbstorganisation und die Entstehung nationaler Rechtssysteme (17.-19. Jahrhundert)

Author(s): Rudolf Stichweh / Language(s): German Issue: 09/1990

The considerations presented below are not the results of a research project that has been carried out. Rather, they have the status of conceptual preliminary considerations aimed at how the theoretical question of the autonomy of law can be specified in historical research. The term self-organization stands as a representative for a class of newer theories about autonomy, which are otherwise associated with names such as 'second order cybernetics', 'autopoiesis', 'constructivism' and 'operational closure'. As will become clear below, 'self-organization' was deliberately chosen as the title from these alternatives, because the demands on autonomy that arise under this premise are still comparatively elementary, and it is therefore obvious to first consider processes of progressive differentiation of a system in To address the terms of self-organization - and only then to ask whether and when more demanding autonomy conditions - such as those of a theory of autopoiesis - are fulfilled by the system in question.

REASONS AND FORMS OF LEGAL HERMENEUTICS

Author(s): Dejan Logarusic,Milan Rapajić,Darko Golić / Language(s): English Issue: 2/2024

Hermeneutics, or interpretation, can be defined as a procedure to clarify something that is incomprehensible, unclear or insufficiently understandable, insufficiently clear, and to interpret it to the level of comprehensibility. Hermeneutics can rightfully be called the art of understanding. Legal hermeneutics as an art is, in principle, a very complex process that can also be characterized as a process requiring the application of knowledge from various scientific fields. Legal knowledge, in the specific case of interpreting legal norms by procedural bodies, cannot be disputed. However, legal knowledge is not always sufficient to ensure adequate interpretation and application of law in a given case. The need for legal hermeneutics arises in situations where there is a discrepancy between the spirit and letter of a legal norm, when the legal norm is unclear, contradictory, ambiguous, or even polysemous, and of course, in situations where there is an absence of legal norms regulating a specific issue. The above indicates the importance and dimension of the application of legal hermeneutics as a timeless skill in the field of law and the application of legal norms. In line with the topic, the paper analyzes several important questions: how to define the term legal hermeneutics, what are the reasons leading to the need for legal hermeneutics, and finally, which characteristic forms of legal hermeneutics can be singled out and presented more closely, according to the criterion of means or methods of interpretation.

Biocentrismul juridic – oglindirea ideologiei deep ecology în drept

Author(s): Dumitru Balea / Language(s): Romanian Issue: Si./2024

Deep ecology? Deep thinking! sau despre importanţa ideilor absurde

Author(s): Alexandra Mercescu / Language(s): Romanian Issue: Si./2024

Dreptul persoanelor şi transumanismul. Reificarea fiinţei umane şi personificarea maşinii

Author(s): Lavinia Tec / Language(s): Romanian Issue: Si./2024

Răspuns

Author(s): Codruța Guzei-Mangu / Language(s): Romanian Issue: Si./2024