Journal articles on the topic 'Jurisprudence and legal interpretation'
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1
Gbade, Akinrinmade. "Statutory Interpretation: Whither Nigerian Jurisprudence?" AGOGO: Journal of Humanities 9 (September 2, 2020): 67–77. http://dx.doi.org/10.46881/ajh.v9i0.249.
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The application of the principles of statutory interpretation cuts across every area of legal practice. This position attests to the importance of the principle of statutory interpretation to legal practice. However, legal curriculum in Nigeria and in most common law countries both at the undergraduate and postgraduate levels has failed to give this area of law the prominence it deserved in their respective law curriculla. Aside from this, the continued classification of the various rules of interpretation as distinct/separate rules of interpretation makes this field of study unintelligible and difficult to comprehend because of the complexity of words. In addition, each of the principal rules of statutory interpretation has inherent shortcomings, which has led to delay in judicial administration and caused injustice. Consequently, this paper reiterates the need to play emphasis on this area of study in law curriculum, ex-rays the current rules of statutory interpretation as applicable in Nigeria, and draws inspiration from the practice in English and Indian jurisdictions. It also advocates that resort should be had to the purposive approach which is a harmonization of the principal rules of statutory interpretation subject to emerging realities of justice and developments in order to ensure that the end of justice are appropriately served.
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Mikhailov, Anton Mikhailovich. "Interpretation of jurisprudence and law in the doctrine of T. E. Holland." Право и политика, no. 12 (December 2021): 46–60. http://dx.doi.org/10.7256/2454-0706.2021.12.37185.
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The subject of this research is the legal doctrine of the leading representative of English legal positivism of the last quarter of the XIX – first third of the XX centuries of Thomas Erskine Holland. The article is dedicated to examination of the two key aspects of his concept – comprehension of the nature of jurisprudence as a science, and law as a type of social norm. Leaning on the classic work of the British jurist “The Elements of Jurisprudence” (1880), the author defines the understanding of jurisprudence and law, reveals the historical-cultural meaning of Holland's legal doctrine for the subsequent development of English jurisprudence. Methodological framework is comprised of the historical approach, elements of biographical approach, techniques and procedures of legal hermeneutics, rules and techniques of formal logic, and elements of comparative-legal method. The scientific novelty lies in the fact that this article is first within Russian legal science to conduct the concept analysis of the key theoretical-legal definitions (jurisprudence and law) of T. Holland’s doctrine, as well as reveal the ideological interrelation between the views of the British jurist and the founders of analytical jurisprudence. The author also substantiates the position, according to which Holland's approach towards comprehension of the nature of jurisprudence as a science can be defined as dogmatic. T. Holland's contribution to the development of legal positivism consists in argumentation of the formal and analytical nature of legal science, as well as in carrying out gradual differentiation of positive law from natural and social norms, and analysis of the crucial theoretical concepts of legal science.
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Amiraghdam, Rima, Gholam Ali Seifi Zeinab, Ali Zare, and Mohsen Ghasemi. "The Role of Jurisprudence in the Interpretation of the Law and Its Conformity with the Realities in the Law of Iran and France." Journal of Politics and Law 9, no. 8 (September 29, 2016): 57. http://dx.doi.org/10.5539/jpl.v9n8p57.
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The jurisprudence position difference in common law systems and the written law among the sources of law requires the study of the jurisprudence role in the interpretation of the law, and its adaptation to the realities of society. In Iranian law, jurisprudence means identical judgments of prosecutors from additional resources and commentary, and accepting the fact that, it could create a legal rule seems unlikely. In France, with the approval of the separation of powers and criticizing the classical doctrine, it seemed unlikely, the jurisprudence has a legislative role, however, such an idea has been expanded with all law branches and it seems to be a balance between resources related to legislate on the one hand and jurisprudence, on the other hand. Since, the rules express the general rules and it is impossible to predict the detail in the legislative practically, it is jurisprudence that could provide interpretations consistent with realities and social requirements of the law, in a complementary and commentary role. In this paper, the relationship between jurisprudence and interpretation of the law, especially in cases where we face with the need to interpret the law and the effectiveness of position on the interpretation of the law and its adaptation with the realities of society by jurisprudence will be discussed. These matters are examined with the descriptive analysis method that shows the importance of them in highlighting the role of jurisprudence in the legal system.
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Moath Alnaief and Kotb Rissouni. "A Critical Analysis of the Claim that Absolute Juristic Interpretation (Ijtihād) Has Ended." Journal of Islamic Thought and Civilization 12, no. 2 (October 11, 2022): 28–40. http://dx.doi.org/10.32350/jitc.122.03.
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This article critically analyzes the dominant opinion prevailing regarding the foundation of Islamic jurisprudence (uṣūl al-fiqh) which states that absolute independent juristic interpretation (al-ijtihād al-muṭlaq al-mustaqill) is no longer possible. Therefore, based on the belief that this level of interpretation requires the creation of a unique method for deriving legal rules (istinbāṭ), a method that arguably ended with the founders of the primary schools of law. This research inspects a new interpretive method which was not developed by late scholars. Consequently, the article uses legal reasoning as an interpretive method to criticize the previous opinions regarding Islamic Jurisprudence by using both textual and rational evidence. For instance, the preservation of religion and the continued renewal of convenient sources requires scholars to reach the highest level of interpretation (ijtihād). In addition, a connection to the legal reality of the time and rulings were necessary to adapt them, an issue dependent upon direct derivation of rulings from religious texts or the freedom to implement secondary forms of evidence. Therefore, this research concludes that the founders of the traditional law schools did not develop their foundations independently. Instead, they did so through constructive investigation and analysis. Their interpretations conformed to the Prophet’s (SAW) Companions. Such a process continued and future independent scholars followed their footsteps. In addition, the legal reality in every age saw the rise of individuals who positively impacted the renewal of the foundations of jurisprudence by interpreting Prophetic hadīth which required advanced interpretative skills.
Keywords: Absolute Ijtihād, Ijtihād, Islamic law, Independent juristic reasoning, Madhāhib
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Zirk-Sadowski, Marek. "Problemy wyboru pomiędzy konkurującymi modelami wykładni prawa." Przegląd Prawa i Administracji 104 (October 19, 2016): 155–69. http://dx.doi.org/10.19195/0137-1134.104.10.
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PROBLEMS OF CHOICE BETWEEN COMPETING MODELS OF THE INTERPRETATION OF THE LAWThe plurality of theories of legal interpretation is well described in the legal literature. According to the author, the choice between the models of interpretation has to be based on the thesis that the full conception of the legal interpretation includes three levels of reflection: firstly, epistemology established for the theory of the interpretation, secondly, determining the relation between the theory of the interpretation and interpretative doctrine ius interpretandi and thirdly, structure of the theory of the interpretation which is a result of methodological solutions accepted by the type of jurisprudence. The paper has been devoted to discussing these three problems.
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Frolova, Elizaveta A. "V.S. Gruzdev. Realism in jurisprudence: theoretical, methodological and historical aspects." Gosudarstvo i pravo, no. 5 (2022): 181. http://dx.doi.org/10.31857/s102694520019746-1.
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In the review of V.S. Gruzdev’s monograph “Realism in jurisprudence: theoretical, methodological and historical aspects” it is noted that the research of the author of the reviewed work seems to be in demand by modern philosophy and jurisprudence. The purpose of this monograph is to study on the basis of original texts the main directions of legal realism as a paradigm of legal understanding in the context of its genesis, typology, main interpretations and directions of development, to show its evolution and interpretation. To achieve it, the author solves a number of theoretical, methodological and methodical tasks: generalizes approaches in domestic and foreign literature to the interpretation and justification of realism as a theoretical and methodological attitude and method of cognition of law; identifies the main directions of evolution and typology of conceptual legal realism; explores the concept of activity as a semantic characteristic of legal practice; analyzes the most significant trends in the evolution of legal realism in the history of Western European and Scandinavian legal thought; explores the specifics of American legal realism; determines the role of realism among the dominants in the history of Russian legal thought. The issues raised in the monograph and their presentation are of interest for further scientific research in the field of theory, Philosophy and Sociology of Law, history of political and legal doctrines, history and methodology of legal science.
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Łakomy, Jakub. "Critical Jurisprudence of Duncan Kennedy and the Status of the Theory of Legal Interpretation." Krytyka Prawa 12, no. 3 (September 15, 2020): 70–89. http://dx.doi.org/10.7206/kp.2080-1084.396.
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KUGLE, SCOTT ALAN. "Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia." Modern Asian Studies 35, no. 2 (April 2001): 257–313. http://dx.doi.org/10.1017/s0026749x01002013.
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A system should be formed, which shall preserve as much as possible can be done, their institutions and laws to the natives of Hindoostan, and attemper them with the mild spirit of British government.—John BruceJurisprudence is the nexus where authoritative texts, cultural assumptions, and political expediency come together during a crisis. It is therefore not so much a thing or a system as it is an experience, an interpretative experience. Yet the practice of jurisprudence is very different from other types of interpretation because it is also an exertion of power. A legal interpretation is a decision which mobilizes coercive forces to immediately solidify the interpretation into a social reality. The administrative structure of courts and the legal rhetoric that flows through them disguise jurisprudence as ‘a system’ rather than revealing its nature as an interpretative experience; this disguise serves to heighten the authority of these exercises of power and to limit the ability to contest them to specialists.
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TARAN, P. E., and A. D. STRUNSKIY. "THE IDEA OF LAW AND ITS ROLE IN THE DEVELOPMENT OF THE DOCTRINE OF INTERPRETATION OF LAW: HISTORICAL AND THEORETICAL ANALYSIS OF THE GERMAN LEGAL DOCTRINE IN THE 19TH — THE FIRST HALF OF THE 20TH CENTURY." Actual Problems of Russian Law, no. 5 (June 18, 2019): 11–23. http://dx.doi.org/10.17803/1994-1471.2019.102.5.011-023.
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The article is devoted to the analysis of theoretical provisions of the main schools of German jurisprudence in the 19th — the first half of the 20th century in the context of legal consciousness and interpretation of law. The article determines the main theoretical premises of such important academic areas as: the Historical School of Law, Jurisprudence of Concepts, Jurisprudence of Interests, the School of Free Law, Legal Positivism and Neo-Cantianism. The author considers scientific works of the main representatives of these schools. The development of concepts of law and interpretation of law in the German legal doctrine demonstrates the connection of the doctrine of interpretation with the idea of law and real legal life. The historical period under consideration witnessed the work of many outstanding lawyers whose teachings had an impact not only on the legal science of many countries of Europe and Russia, but also on the legal doctrine of individual States belonging to the Anglo-Saxon legal family. Despite the different nature of their teachings, there is a link between the idea of law and their approach to the interpretation of legal provisions. This interaction is also inverse, many scholars have solved the problem of the essence of law by resorting to interpretive procedures. Tendencies similar to the tendencies typical for the German legal doctrine have found support both in the judicial practice of German courts and in the practice of the higher courts of the European Union. The article concludes that further development of the doctrine of interpretation of law requires not only the development of the methodology of interpretation of law, but also further developmentss in the philosophy of law.
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Szudejko, Piotr. "Selected issues of legal interpretation in the jurisprudence of the Constitutional Court." Polish Law Review 2, no. 1 (December 31, 2016): 87–98. http://dx.doi.org/10.5604/24509841.1232095.
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The ongoing dispute in Poland for the position in the political system and the functioning of the Constitutional Court is highlighting the problems of the legal interpretation, conducted by this body.The aim of the article is to analyze selected problems signaled in the public discourse: the acting of the Constitutional Court as a judge in its own case and the use of dynamic and static methods of legal interpretation.The basis for deliberation is a description of the functions exercised by the Constitutional Court, including interference function, as well as the basic classification of legal interpretation, with particular emphasis on dynamic and static interpretation. On this background, an analysis of the admissibility and the consequences of the use of these methods of interpretation in the jurisprudence of the Court was presented.Moreover, the principle nemo judex in causa sua was presented, including the description of its role in the Polish legal system as well as permitted exceptions.The result of the study was the observation that the legal provisions do not define acceptable methods of interpretation, which means that the entity that is performing legal interpretation has the discretion in choosing the appropriate method. At the same time the thesis has been proposed, that the use of a dynamic interpretation of constitutional models should be considered an exception, justified by the occurrence of significant socio-economic changes.
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Proto Pisani, Andrea. "TRE NOTE SUI «PRECEDENTI» NELLA EVOLUZIONE DELLA GIURISPRUDENZA DELLA CORTE COSTITUZIONALE, NELLA GIURISPRUDENZA DI UNA CORTE DI CASSAZIONE NECESSARIAMENTE RISTRUTTURATA E NELLA INTERPRETAZIONE DELLE NORME PROCESSUALI." Revista Direito das Relações Sociais e Trabalhistas 4, no. 2 (October 9, 2019): 188–202. http://dx.doi.org/10.26843/mestradodireito.v4i2.133.
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Three comments on judicial precedents in the evolution of the jurisprudence of the Constitutional Court, in the jurisprudence of the Corte di cassazione, to be necessarily restructured, and in the interpretation of rules concerning legal proceedings.
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Bekrycht, Tomasz. "Jerzy Wróblewski’s Concept of Legal Interpretation in its Axiological and Epistemological Context." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 217–28. http://dx.doi.org/10.1163/15730352-04502002.
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The work of Jerzy Wróblewski has had a huge impact not only on the theory and philosophy of law, both in Poland and internationally, but also on the whole of jurisprudence, especially the fields of doctrinal legal research and the practical application of the law (in particular on adjudication). The aim of this study is to present one of Wróblewski’s most influential concepts, namely the theoretical model of judicial interpretation, from the point of view of axiology and epistemology in the field of jurisprudence.
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Indah, Christina Maya. "MENGGAGAS CITA MORAL DALAM PENAFSIRAN HUKUM HAKIM." Refleksi Hukum: Jurnal Ilmu Hukum 4, no. 1 (November 21, 2019): 41–60. http://dx.doi.org/10.24246/jrh.2019.v4.i1.p41-60.
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In implementing his duty, a judge shall not only be considered as the mouth of acts (la bouche de la loi). The duty of judge is also to interpret law facts in concreto with abstract regulations. It has to be noted that jurisprudence is a hermeneutic exemplar in optima forma which is internalized in law of society. Accordingly, judge may not only interpret the juridical text, but also interpret the fact that results legal problems in order to solve the legal problems. The interpretation of the judge which contains the idea of moral is a concept of law as interpretation/processes of interpreting and also a concept of law as a value based on a statement of ’law as what ought to be in moral or ideal precepts’. This article argues that building the judge’s legal interpretation means developing judge jurisprudence using the dynamic approach in legal hermeneutics. Such approach accomodates the ideal of law in judge’s interpretation that includes open-mindedness and humanistic in moral perspective.
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Bekrycht, Tomasz, and Rafał Mańko. "Polish Jurisprudence in the 20th Century: A General Overview." Review of Central and East European Law 45, no. 2-3 (June 23, 2020): 181–99. http://dx.doi.org/10.1163/15730352-04502001.
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The present paper provides a general overview of the sources of inspiration and main currents in Polish jurisprudence in the 20th century, especially in the post-War and contemporary period. The paper notes that the main sources of inspiration in the early 20th century included Leon Petrażycki, Bronisław Wróblewski, Czesław Znamie-rowski and Jerzy Lande, who exerted a great influence on the first generation of Polish post-War legal theorists. The Lvov-Warsaw school of analytical philosophy also had a huge impact on Polish jurisprudence, as the school to a large extent determined the research questions posed by Polish legal theorists. Indeed, analytical legal theory can be said to have dominated Polish jurisprudence from the 1950s up to the end of the 1980s. After 1989, a broad current of new philosophical approaches to jurisprudence emerged, including legal hermeneutics and philosophies of interpretation, legal ethics, postmodern and critical legal theory, the phenomenology of law as well as an original Polish achievement – the legal theory of ‘juriscentrism’.
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Nelson, B. L. S. "Hobbes’s Third Jurisprudence: Legal Pragmatism and the Dualist Menace." Canadian Journal of Law & Jurisprudence 33, no. 1 (February 2020): 183–214. http://dx.doi.org/10.1017/cjlj.2019.35.
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This paper explores the possibility that Hobbesian jurisprudence is best understood as a “third way”? in legal theory, irreducible to classical natural law or legal positivism. I sketch two potential “third theories”? of law—legal pragmatism and legal dualism—and argue that, when considered in its broadest sense, Leviathan is best viewed as an example of legal pragmatism. I consider whether this legal pragmatist interpretation can be sustained in the examination of Leviathan’s treatment of civil law, and argue that the pragmatic interpretation can only be successful if we can resolve two textual issues in that chapter. First, while Hobbes argues that law entails the existence of public (sharable) reasons, he does not adequately defend the view that the sovereign is the unique authority over such reasons in all cases, especially as far as they concern known collective emergencies. Second, Hobbes both affirms and denies that a sovereign can fail to do justice, which is paradoxical. Both problems are best resolved by legal pragmatism, though the second problem resists a fully satisfying resolution. The upshot is that, although Leviathan ought to be regarded as an episode of legal pragmatism, there are trade-offs on every reading.
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Gruzdev, Vladimir Sergeevich. "Activity as a dominant of conceptual legal realism." Право и политика, no. 6 (June 2021): 30–44. http://dx.doi.org/10.7256/2454-0706.2021.6.35799.
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The subject of this research is the concept of activity – one of the semantic characteristics of conceptual legal realism. The latter is viewed as a certain paradigm or gnoseological strategy, which serves as the basis for the development of cognitive attitudes. Legal realism is often erroneously reduced to the regional and local schools and trends of the legal thought. However, the study of legal realism as a conceptual technique, which has different interpretation of one of the central and meaning-making themes in the history of legal thought, allows introducing significant clarifications into the understanding of realism in jurisprudence from the perspective of the history of its formation, as well as heuristic capabilities in modern legal science. Activity is viewed as one of the key characteristics of the realistic approach towards law, taking into account various interpretations of realism. The novelty of this research consists in examination of the problem of realism in jurisprudence and its fundamental semantic characteristics through the prism of conceptual approach. The problem of psychology of activity, which was actively developed by the Soviet philosophical-psychological school, is closely related to the development of realistic interpretations of law in the contemporary history of legal thought. The author substantiates the position that application of the construct on the differentiation of the objective meaning from subjective-personal sense in the area of cognition of law allows to critically reconsider such trends on the modern legal thought that position themselves as the varieties of legal realism, clarify possible directions in the development of realism in jurisprudence.
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Timoshina, Elena V., and Viacheslav E. Kondurov. "Searching the Lost Meaning: Legal Interpretation in the Situation of the Death of Legislator." Voprosy Filosofii, no. 10 (2022): 29–43. http://dx.doi.org/10.21146/0042-8744-2022-10-29-43.
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The article is concerned with the problem of relativisation of the philosophical grounds of the legal interpretation theory. The latter include ideas about the text and reality relationships, the interpreter’s ability to cognize the meaning of the text, and ethical principles of dealing with the text, its author, and its meaning. The article is discussing the author- (logo-) centric approach to the interpretation of authoritative texts, which used to be common for medieval scholasticism and jurisprudence and was conditioned by the genealogy of these two disciplines. The authors show how the consequent proclamation of the death of the signifier (God and the Author) and the signified (sign) affected the theory of legal interpretation. It is pointed out that the semantic voluntarism of the judge-interpreter and the absence of any ethical restraints in dealing with the author, text and meaning as the main consequence of the destruction of its logocentric foundations. The metaphor of the death of the legislator is introduced, with the help of which the distrust of the legislator as a source of meaning, which is widespread in modern theories of legal interpretation, can be recorded. When applied in jurisprudence, such theoretical conceptions can generate political effects in the legal order, changing the perception of the separation of powers and the subject of sovereignty. In the conclusion, the authors defend the position of interpretative realism, which obliges the interpreter to reveal the meaning invested in the text by its author.
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Sichevliuk, V. A. "Interrelation of theoretical concepts of jurisprudence and legal practice (using the example of the category «legal subjectity»)." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 94–99. http://dx.doi.org/10.33663/2524-017x-2021-12-15.
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The article discusses the interrelation between theoretical concepts of jurisprudence and legal practice on the exampleof the category «legal subjectity». With an indication of real practical situations, the necessity of implementing the relevant theoretical achievements of legal science in the standards of practical legal activity is justified. It is noted that at the level of practice the integral content of legal categories, principles and other theoretical concepts of jurisprudence is inevitably operationalized and takes the form of terms. At the same time, the requirement for the unambiguity of the latter creates a constant need for practice in interpreting their content. The correct interpretation of the terms involves a combination of the achievements of theory and practical experience. Deviation from this rule leads to errors in terminology and mistakes in the interpretation of law. Attention is drawn to the need of using in the texts of judicial, administrative, contractual, and other documents the correct wording on the legal subjectity of separated units and governing bodies of legal entities. The contradictions of the notion of «complex legal entity» are also highlighted. Examples are given of how the legislative acts of Ukraine in some cases do not correspond to the basic principles of the legal entity institution, allowing the existence in the internal organizational space of legal entities of other legal entities. It is emphasized that this status of structural subdivisions of organizations and public authorities contradicts the need to ensure their organizational integrity as subjects of law, endowed with a complete kind of legal subjectity, namely «personal legal subjectity». Keywords: theoretical concepts of jurisprudence, category «legal subjectity», legal entity, personal legal subjectity, structural division of a legal entity.
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He, Huanhuan, and Xiaobo Dong. "Semiotics, language, and law: the linguistic turn in Western jurisprudence." Chinese Semiotic Studies 18, no. 1 (February 1, 2022): 147–68. http://dx.doi.org/10.1515/css-2021-2052.
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Abstract In the latter half of the 20th century, with the development of philosophy studies, Western jurisprudence also witnessed a linguistic turn in its field. A series of academic schools appeared consecutively, such as the school of semantic analysis, the school of new rhetoric, the school of legal interpretation, and the school of structural semiotics. Their analytical paradigms, which were skeptical of the views of legal languages in traditional theories of jurisprudence, are interdisciplinary and multidimensional in nature and characteristics. Normally, there are three methods used in the linguistic turn of Western jurisprudence, that is, the method of symbolic restoration, the method of structural and functional analysis, and the method of legal hermeneutics. Promoted by the linguistic turn, two traditions of legal semiotics also developed. One is the legal theory based on Greimasian semiotics, and the other is based on Peircean semiotics. The linguistic turn in jurisprudence still represents a breakthrough and innovation in the paradigm of legal theoretical studies, as it leads to a re-examination of language, which is no longer treated as a tool but as a philosophical afterthought in relation to the human being.
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Perulli, Adalberto. "The legal and jurisprudential evolution of the notion of employee." European Labour Law Journal 11, no. 2 (February 24, 2020): 117–30. http://dx.doi.org/10.1177/2031952520905145.
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The essay analyses the concept of employed worker in the light of the expansive trend of labour law. Two perspectives are investigated. The first concerns the revisiting of the concept of employed worker through the interpretation of jurisprudence. Comparative analysis demonstrates a tendency, not univocal but prevalent, of jurisprudence to broaden the notion of subordinate work, which manifests itself through purposive interpretation techniques. The other perspective is that of the creation of intermediate categories, such as that of ‘worker’ in the UK or that of ‘parasubordinato’ work in Italy, or even the notion of ‘economically dependent self-employment’ (Spain, Germany), to which selectively apply some protections of subordinate work. The current challenge of labour law is therefore to be able to respond to changes in the production reality, exemplified by work through a digital platform, to provide adequate protection for new forms of work and new ways in which subordination is expressed.
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Tukhvatulina, Liana A. "Analytic Tradition in Law: Through the Analysis of Language to the Reconstruction of Social Order." Russian Journal of Philosophical Sciences 63, no. 8 (December 1, 2020): 47–55. http://dx.doi.org/10.30727/0235-1188-2020-63-8-47-55.
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The article reconstructs the premises of the reception of analytic philosophy in jurisprudence and shows that the development of a method for clarifying the meanings of legal concepts is not least connected with the problem of legitimizing law enforcement. The article analyzes H.L.A. Hart’s approach to the problem of correlation between the “letter” and “spirit” of the law in the process of interpreting legal norms. The article argues that the process of interpretation is determined teleologically. In its limit, the interpretation of legal norms presupposes the re-creation of the desired image of society, the reconstruction of such social ontology that is most consistent with the ideal of achieving social welfare. The article examines the collision of the “ideal of order” and the “ideal of justice” as two regulations of law enforcement. The author believes that the interpretation of this collision within the analytical tradition was characterized by a gradual movement from the ideal of “mechanical” law enforcement, which minimizes the creative role of the interpreter, to the ideal of flexible interpretation focused on achieving legal goals in a changing environment. It is noted that, according to analytic approach, a theoretical solution to this conflict was proposed due to the development of the ideas of an “open texture” of law (H.L.A. Hart, F. Waismann). The author demonstrates that the development of the analytic tradition in jurisprudence has shown that the criticism of language and the interpretation of meanings are not technical tasks, but it presupposes the construction of a metaphysics of law. In this regard, the author concludes: the development of the ideas of the analytic tradition in jurisprudence demonstrates that the thesis about the absence of a positive program in analytic philosophy, put forward in the first (A.L. Nikiforov’s) article of the discussion, can be challenged.
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Fuentes, Alejandro. "Judicial Interpretation and Indigenous Peoples’ Rights to Lands, Participation and Consultation. The Inter-American Court of Human Rights’ Approach." International Journal on Minority and Group Rights 23, no. 1 (January 30, 2016): 39–79. http://dx.doi.org/10.1163/15718115-02202006.
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This article proposes a critical legal analysis of the jurisprudence of the Inter-American Court of Human Rights regarding indigenous peoples’ rights to lands, participation, and consultation. It focuses on the role that cultural diversity as a legal standard has played in the recognition of the indigenous peoples’ right to consultation and participation in all matters that directly affect them, as a guarantee for the protection of their right to communal property and natural resources traditionally used, and for safeguarding their cultural identity. In analysing the jurisprudence of the Inter-American Court, special attention is paid to the interpretative methods applied by the regional tribunal, and to the manner in which a non-restrictive and ‘culturally friendly’ interpretation of conventionally protected human rights has contributed to the enlargement of their scope of protection, and to their enjoyment by one of the most marginalized and excluded sectors of Latin-American societies.
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Mutapčić, Hamid. "PRINCIPLE ON THE LAND REGISTER IN THE INTERPRETATION OF JURISPRUDENCE." Journal Human Research in Rehabilitation 6, no. 1 (April 2016): 46–56. http://dx.doi.org/10.21554/hrr.041606.
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For a longer period of time land registers in Bosnia and Herzegovina do not reflect the actual situation regarding property rights. The reasons should be sought in the poor quality of and inconsistent legislation that allowed non-registered acquisition of real property rights. On the basis of such legislation earlier Yugoslav jurisprudence had permanently denied the acquisition of property rights based on the principle of trust in the land registry. A new definition of the principle of trust, which implies the protection of the rights acquired on the basis of incorrect and incomplete land registry status, was introduced with the entry into force of the new entity laws on land registry. The main intention of the legislature is reaffirmation of the land registry and its basic principles, which is a precondition for faster and easier real estate transactions. However, the new law provides for real solutions that prevent the full application of the principle of trust, which results in the adoption of different and unequal judicial decisions. The paper presents analysis of such legal solutions, also defects that generate the emergence of different concepts of law are detected, and proposals de lege ferenda are listed in order to create the legal conditions for uniform jurisprudence.
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Puchkov, V. O. "Concept-terminological apparatus of legal science and the prospect of “machinization” of law: is it possible to represent the legal constructions by the means of λ-calculus?" Law Нerald of Dagestan State University 40, no. 4 (2021): 36–42. http://dx.doi.org/10.21779/2224-0241-2021-40-4-36-42.
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The article examines the problem of legal constructions’ interpretation in the context theory of Ȝ-calculus as logical foundation of modern programming languages. The purpose of the study is to show the methodological obstacles to the “machinezation” of law, caused by the specifics of jurisprudence’ conceptoterminological apparatus. The methodological basis of the research is represented by the philosophical concepts of knowledge, function and concept, the dialectical method, metascientific means of cognition (system approach, logical method of Ȝ-calculus), special methods of legal science (legal dogmatic and legal exegesis). The study concludes that the dogmatic principles of jurisprudence, the concepto-terminological apparatus of which largely determines the content of positive legal norms, impede the algorithmicization of legal constructions and, in current conditions, make it impossible to form the so-called "machine-readable" law
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Muller, Gilles. "National Treatment and the GATS: Lessons from Jurisprudence." Journal of World Trade 50, Issue 5 (October 1, 2016): 819–43. http://dx.doi.org/10.54648/trad2016033.
Full textAbstract:
Non-discrimination is one of the fundamental principles of the World Trade Organization (WTO). The National treatment is one of the provisions that translate the principle into concrete legal obligations. Under the General Agreement on Trade in Services (GATS), it aims to avoid discrimination between domestic and foreign services and service suppliers. The application of this obligation is subject to the fulfilment of cumulative conditions that are subject to interpretation. This has raised numerous issues regarding both the scope of application and requirements of Article XVII GATS. Over the past decade, WTO adjudicating bodies have issued several reports that address the interpretation of national treatment under the GATS. While this has clarified some points, other issues remain largely unresolved. This article discusses the interpretation of national treatment in the light of these recent developments.
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Manzhosov, Sergei, and Sergey Belov. "Decisions of International Courts: Following Precedents or Consistent Jurisprudence?" Meždunarodnoe pravosudie 10, no. 4 (2020): 3–21. http://dx.doi.org/10.21128/2226-2059-2020-4-3-21.
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The contemporary international law doctrine is critical to the notion of binding force of general positions of international courts. The grounds for this critics is more weighty in international law than in domestic law. If in the latter general binding force of judicial decisions erga omnes questions the separation of powers, in the former the states as the main actors of the international relations try to participate and control any norm-making. At the same time international courts realize the necessity of consistency of interpretation and applying of legal norms and principles, as unpredictable decisions breach the certainty of law. These courts demonstrate surprising uniformity of approaches to this issue, disregarding their status, legal grounds for their jurisdiction, the nature of the cases they consider. The courts recognize their duty to follow the sustainable interpretation of international law, as it appears in the own practice of these courts and other international authorities, because this is crucial for the definiteness of legal regulation, predictability of judicial decisions and consistency of legal solutions. The international courts reject following precedents according to the stare decisis rule and are very caution to declare following the concept of jurisprudence constant, trying to be equidistant to particular legal traditions. The legal acts regulating the international justice favour this caution, as they establish the binding force of judicial decisions only inter partes and within concrete case. In a case of need to deviate from the established practice both the International Court of Justice, International Criminal Court, European Court of Human Rights and international investment arbitration tribunals tend to (1) appeal to formal arguments of non-binding force of previous decisions, or (2) argue the differences of considering case with preceding cases, or (3) base on notions developed in their practice – e.g., the idea of “European consensus” in the practice of the European Court of Human Rights.
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Березина, Елена Александровна. "LEGAL TECHNOLOGY AS A SCIENTIFIC DIRECTION IN NATIONAL JURISPRUDENCE." Rule-of-law state: theory and practice 18, no. 2(68) (July 5, 2022): 16–26. http://dx.doi.org/10.33184/pravgos-2022.2.2.
Full textAbstract:
In the modern world, more and more attention is paid to the problems of social technologies both in the field of science and in the field of practical activity. A distinct type of social technologies is legal technology, which can be considered, firstly, as a purposeful activity carried out through legal means, aimed at changing legal reality, secondly, as a certain scientific direction of legal research, thirdly, as an academic discipline. The purpose of the study is to substantiate the need to consider legal technology as a scientific direction in national jurisprudence, identifying its features as a system of knowledge, defining the object, subject and method of legal technology, considering the principles and functions of legal technology as an independent scientific direction. Research methods: to achieve this goal, philosophical methods (dialectical logic), general scientific methods (formal logic, structural-functional, systemic, historical methods), specific scientific methods (sociological, linguistic) and special legal methods (formal legal, legal forecasting, interpretation of law) are used. Results: the conducted research allows us to conclude that legal technology as a system of interrelated knowledge has specific features of a substantive, methodological, functional nature; it has a system of its own characteristics and principles, which allows it to be considered as an independent direction of scientific knowledge. Legal technology is a scientific direction that studies the processes of purposeful influence on social relations, exercised by legal entities in a special way, with the help of special legal means to achieve the predicted (planned) legal results.
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Sychenko, Elena. "ILO Contributions to the Jurisprudence of International Human Rights Bodies." Zbornik Pravnog fakulteta u Zagrebu 71, no. 6 (February 1, 2022): 897–920. http://dx.doi.org/10.3935/zpfz.71.6.04.
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The paper addresses the role of the International Labour Organization (ILO) in the consideration of cases and in the interpretation of international human rights instruments by the Committee on Economic, Social and Cultural Rights and the European Court of Human Rights. As labour rights form part of internationally recognized human rights the author attempts to evaluate the penetration of ILO standards and legal reasoning into the adjudication of human rights cases and interpretation of human rights instruments by other international bodies. The analysis of the jurisprudence of the CESCR and the ECtHR demonstrates that the ILO standards and the legal reasoning are always referred to in the cases related to labour rights and serve as a source of “substantial filling” of both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.
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Bilozʹorov, YE. "Jurisprudence activity based theory: general characteristics." Uzhhorod National University Herald. Series: Law, no. 70 (June 18, 2022): 19–23. http://dx.doi.org/10.24144/2307-3322.2022.70.2.
Full textAbstract:
The article is devoted to general characteristics of the activity based theory as a constituent of jurisprudence, a theory by means of which legal phenomena can be interpreted. It is emphasized that the activity based theory could be methodological means of knowledge of law that has not become the subject of comprehensive knowledge at present. It is noted that psychology has long considered the theory of activity as a constituent part of the epistemology of its subject, but there were not conducted comprehensive research of the activity based theory as a component of jurisprudence within the domestic legal science.
Attention is paid on three components of the theory of activity allowing us to consider it as a possible constituent of jurisprudence. The object is the first crucial feature of the activity based theory. Legal phenomena as dynamic phenomena are being the object of the activity based theory that in turn is a component of jurisprudence The second important characteristic feature of the activity based theory is the content The activity based theory is a system of knowledge about legal phenomena. This knowledge allows revealing the essence, functioning and legal phenomena’s development tendencies. The third significant characteristic feature of the activity based theory is the conceptual and categorical apparatus. It is noted that the terminology of the theory of activity largely includes terms inherent in everyday language, and such a feature of the theory of activity terminology has not interfered with the possibility of its use in explaining psychological phenomena.
It is summarized that the further national legal system development aimed at entering the European legal culture involves a change in the paradigm of perception of law, and interpretation of legal phenomena. One of the important means of ensuring the effectiveness of law and overcoming legal dogmatism is the jurisprudence activity based theory. The potential epistemological possibilities of the theory of activity in the field of law are determined by the inherent human nature of the desire for activity, coexistence in law and order, and the connection of law with the human state of mind. The jurisprudence activity based theory can be a means of interpreting of legal phenomena as dynamic phenomena. The social nature of law determines the variability of law that should correspond to the relations governed by legal norms. The jurisprudence activity based theory allows finding out legal phenomena’s origin, functioning and trends in their development.
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Marinković, Tanasije. "Barak’s Purposive Interpretation in Law as a Pattern of Constitutional Interpretative Fidelity." Baltic Journal of Law & Politics 9, no. 2 (December 1, 2016): 85–101. http://dx.doi.org/10.1515/bjlp-2016-0013.
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Abstract Political jurisprudence points out that constitutional court judges sometimes act like political actors, and that their decisions are a function of strategic and ideological as much as legal considerations. Consequently, the proper role of the courts, notably in exercising their review of constitutionality, has been one of the most debated issues in modern political and legal theory. Part of the controversy is also how to measure the interpretative fidelity of judges to the constitutional texts, or conversely, the level of their political engagement. This paper argues for the reconsideration of Aharon Barak’s Purposive Interpretation in Law in that light. Barak’s work was intended to provide, in the first place, judges and other lawyers with a sort of judicial philosophy – a holistic system of legal reasoning, applying both to the interpretation of will, contract, statute and constitution. Nevertheless, these conventions of legal reasoning, modified and readapted, could well be used also as heuristic tools by the academics in measuring the interpretative fidelity of judges to various sources of law. Accordingly, this paper clings closely to the presentation of Barak’s precepts for the purposive interpretation of constitutions, by focusing on the notions of subjective and objective purpose in interpreting constitutions, and how the potential conflicts between these purposes are resolved.
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Sorokin, V. V., and M. N. Kutyavina. "Explanation of Law in the Interpretation of Postmodernism." Russian Journal of Legal Studies 5, no. 2 (June 15, 2018): 54–57. http://dx.doi.org/10.17816/rjls18399.
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The article analyzes the reasons for neglecting the truth in the process of interpreting the rights and opportunities for a way out of the crisis of modern jurisprudence. The actualization of the spirit of law makes it possible to correctly prioritize conf licts of legal values. The hierarchy of values in law presupposes respect for truth. But postmodern, in fact, rejects the desire for truth, he is interested in the multiplicity of approaches as such. The authors of the article note the dangers associated with the dominance of postmodernism in the legal process. Globalism exaggerates polysemy in jurisprudence, that is, a variety of meanings and content. Such a polysemy is not justified by circumstances of an objective order. The globalizers of the world need ambiguity of law in order to maintain and aggravate the problem of interpreting (interpreting) the law, due to polysemy in any norms and principles, you can make a different meaning, for the time being without specifying it. And then act on the situation, guided by considerations of benefit. The well-known concept of hypocrisy is derived from polysemy. Jurisprudence serves the world, the main characteristics of which are decentralization, fragmentation, pluralism, eclecticism, multiplicity, uncertainty, discontinuity, volatility, etc. For the philosophy of postmodernism, the outlook does not come to the forefront, but the worldview, that is, rationality and sensuality, change places: a logically formed paradigm gives way to emotional reactions. Postmodernists, as a fighting unit of globalism, consider it impossible and useless to try to establish any hierarchical order or any system of priorities in life. If they allow the existence of a model of the world, then it is based only on entropy, on the equiprobability and equivalence of good and evil, of all constitutive elements.
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Savenkov, Dmitry Aleksandrovich. "The problem of theoretical-methodological “refinement” of jurisprudence." Юридические исследования, no. 12 (December 2021): 1–9. http://dx.doi.org/10.25136/2409-7136.2021.12.37178.
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The subject of this research is the essential characteristic of the history of legal thought of the last two centuries, which directly pertains to the theoretical-methodological fundamentals of legal theory. In the conditions of the object-disciplinary establishment of legal science as the theory of law since the end of the XVIII century, crucial significance has acquired the orientation towards demarcation of logical-gnoseological and real-psychological aspects of legal understanding. The article analyzes the peculiarities of the corresponding theoretical-methodological opposition, which manifested in the appeals to the construction of “refined” legal concepts that exclude any real arguments of social, historical, political, or psychological nature. By the end of the XIX century, namely in the field of the philosophy of law, has escalated the competition between psychologism and anti-psychologism in law. The novelty of this research lies in determination of the new patterns of theoretical and methodological opposition of psychological and anti-psychological attitudes of legal understanding in the evolution of legal thought in contemporary history. It is demonstrated that the phenomenological approach, which claimed to provide jurisprudence with an authentic scientific methodological apparatus, reduced the problem of legal understanding, however, did not contribute to the adequate understanding of law as a complex gnoseological object. Anti-psychological classification of phenomenology cannot be acknowledged without a profound analysis of the conceptual framework that contributed to the evolution of this approach in the sphere of cognition and interpretation of law.
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Frąckowiak, Józef. "Orzecznictwo i doktryna jako źródło prawa prywatnego." Przegląd Prawa i Administracji 112 (August 2, 2018): 47–65. http://dx.doi.org/10.19195/0137-1134.112.4.
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JURISPRUDENCE AND DOCTRINE AS A SOURCE OF PRIVATE LAWIn Polish legal literature, it has long been pointed out that jurisprudence and doctrine have an impact on the formation of legal norms. In private law, the influence of jurisprudence and doctrine is particularly visible. Despite the unambiguous determination in art. 87 of the Constitution of the Republic of Poland, which is a source of law, and lack of case law and doctrine in this list, they play an important role in the creation of the norms of applicable law. In the private law doctrine, it is assumed that the norm of applied law is nothing else but a legal relation understood as a pattern of authorized and prescribed behavior for its parties. Such a relationship that arises from a legal event is shaped by elements derived from: ius cogens norms, parties agreement, ius dispositivi norms, non-legal norms to which the law or agreement of the parties refers, and ultimately by a court decision, within the limits specified in art. 322 k.p.c Code of Civil Procedure. The presented study is devoted to demonstrating what is the role of jurisprudence and the doctrine supporting it in the interpretation of the concepts used in the regulations and what are the relations between the legislator and the case law in this respect.
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do Prado Paula, Raquel, Márcia Lucchino Ferreira, Luciana Claudia Silva Lima, and Fabio Ferreira Morong. "ANÁLISE SUSCINTA SOBRE A TENTATIVA NO FURTO PRIVILEGIADO." Colloquium Socialis 2, Especial 2 (December 1, 2018): 132–39. http://dx.doi.org/10.5747/cs.2018.v02.nesp2.s0268.
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The present work have for objective, realize a study about the attempted in the crime of privileged theft, as provided in § 2º in the article 155 of the penal code. The Method applied was legal deductive based in the interpretation of jurisprudence, constitution, regulation, theories and similar doctrines. It concludes that, indeed there is not detailed writer about the possibility, but the jurisprudence have recognized the attempted in the crimes of privileged theft, wich support the study the light of prism case-law
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Shevchenko, A., V. Antoshkina, and M. Dei. "Features of unilateral deals interpretation." Fundamental and applied researches in practice of leading scientific schools 37, no. 1 (February 28, 2020): 48–51. http://dx.doi.org/10.33531/farplss.2020.1.7.
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Іn this paper the object of the research is unilateral deals from the point of view of their content interpretation. The authors study the contents and features of the interpretation of unilateral deals. Identify existing methods and rules of interpretation of unilateral deals. Analyzed the jurisprudence concerning the interpretation application of certain provisions of the civil law in relation to unilateral deals.
In general, the legislation of Ukraine in the studied aspect is slightly different from the legislation of other countries. It can even be recognized that the domestic system has a greater degree of unification of legal rules, which contains uniform rules of interpretation for virtually all types of deals. Due to this fact the mechanism of interpretation is more transparent, eliminates the diversity of interpretations of the same type of deals.
Thus, the interpretation mechanism as a whole in the civilistic field is formed, but some of its elements require clarification, concretization, improvement, taking into account the peculiarities of different types of deals interpretation, including unilateral ones.
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Minchenko, Olha. "Perception of law through the prism of legal and linguistic theory." Naukovyy Visnyk Dnipropetrovs'kogo Derzhavnogo Universytetu Vnutrishnikh Sprav 1, no. 1 (March 29, 2021): 48–53. http://dx.doi.org/10.31733/2078-3566-2021-1-48-53.
Full textAbstract:
The relevance of the article is stipulated by the necessity to involve in jurisprudence the results of research obtained by intersectoral science – legal linguistics, the provisions of which are an important methodological basis for knowledge of law in postmodern society. The aim of the paper is to elucidate the importance of understanding law in modern conditions by means of legal and linguistic theory. It is noted that in the conditions of postmodern society objects and phenomena are perceived through different discourses, actualizing the issue of hermeneutics. Including in the field of epistemology of legal phenomena and processes. The papers of domestic scholars, the object of which is the issue of legal linguistics and which are divided into two groups are analyzed: papers of specialists in the field of linguistics (in these papers the attention of scholars focuses on linguistic features of legal texts - stylistics, morphology, etc.) and legal publications on certain aspects of legal linguistics. It is substantiated that within the framework of domestic jurisprudence the subject of legal and linguistic theory as a component of jurisprudence and, accordingly, the perception of law by means of the provisions of legal linguistics is poorly studied. Emphasis is placed on the fact that legal and linguistic theory, as a component of jurisprudence, provides an understanding of law, legal phenomena and processes by means of the social and cultural context in general and language, in particular, which connects it with theories of law understanding and law enforcement. It is the paradigmatic nature of legal and linguistic theory that allows us to perceive legal phenomena in a new way. It is emphasized that the legal and linguistic theory of jurisprudence does not consider law separately, language separately, and does not emphasize one of these objects; within it there is a single object - law and language. It is summarized that in the conditions of postmodern society there is a rethinking of social phenomena, including law. Hermeneutic interpretation becomes crucial epistemological tool of the humanities. In the awareness that legal phenomena and processes are not limited to the text of the legal act, and law is interpreted as an act of speech communication, it is legal linguistics that could become an adequate response to modern challenges.
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Manfredi, Christopher P. "The Use of United States Decisions by the Supreme Court of Canada Under the Charter of Rights and Freedoms." Canadian Journal of Political Science 23, no. 3 (September 1990): 499–518. http://dx.doi.org/10.1017/s0008423900012737.
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AbstractThe adoption of the Canadian Charter of Rights and Freedoms has generated considerable interest among legal commentators who question the potential impact of United States civil rights jurisprudence on Charter adjudication. This article offers a preliminary analysis of the impact of US constitutional law generally, and civil rights jurisprudence in particular, on Charter adjudication in the Supreme Court of Canada between 1984 and 1988. Focussing on the Supreme Court's citations of US decisions, the study finds that the frequency of such citations has increased under the Charter. Moreover, the Court's use of these decisions has had a significant substantive impact in defining the nature of constitutional interpretation and the content of the Charter's legal rights.
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Zipunnikova, N. N., and Yu N. Zipunnikova. "SCIENTIFIC KNOWLEDGE OF LEGAL EDUCATION AND SCIENCE EXPERIENCE: FOR THE ACTUALIZATION OF INDIVIDUAL RESEARCH STUDIES." Bulletin of Udmurt University. Series Economics and Law 29, no. 4 (July 25, 2019): 501–8. http://dx.doi.org/10.35634/2412-9593-2019-29-4-501-508.
Full textAbstract:
The study of the history of legal education and science in Russia for a considerable time was crowned with significant results, the formation of a certain historiographic tradition. At the same time, separate plots in the knowledge of legal-educational experience and the establishment of the science of jurisprudence have not yet received detailed development. The authors show some of them, justifying the need for a critical understanding of the features of the historiographical space and the sources of knowledge of the history of the training of legal personnel and jurisprudence, their anthropological and cultural interpretation. The prospects for advancing the problems of legal education and science in the so-called transitional historical periods are demonstrated. The problems of the relationship between the classical heritage and innovative approaches in the technological component of the lawyers training system are considered. Identified research opportunities to read the experience of legal education and science from the perspective of university.
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Saucedo Maqueda, Víctor Manuel. "El modelo darwinista del derecho: una interpretación organicista del primer Roscoe Pound." Revista Filosofía UIS 19, no. 1 (August 20, 2019): 129–64. http://dx.doi.org/10.18273/revfil.v19n1-2020003.
Full textAbstract:
si bien Roscoe Pound tiene su lugar en la historia del pensamiento jurídico gracias a su sociological jurisprudence, el organicismo jurídico de sus primeros trabajos es menos conocido. En este artículo, se rastreará aquel en la formación botánica de Pound. Se verá cómo se diferencia del organicismo clásico y cómo se integra en el debate sobre las fuentes del derecho en la tradición del common law. Finalmente, se propondrá una interpretación en clave darwinista de dicho organicismo jurídico en sus primeros escritos.
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АНДРЕЯНОВА, Надежда Николаевна, and Лариса Владимировна НАУМОВА. "TO THE ISSUE OF THE CONCEPT OF THE STATE TASK AS A FINANCIAL INSTRUMENT IN THE SPHERE OF EDUCATION AND ITS LEGAL REGULATION." Rule-of-law state: theory and practice 17, no. 1(63) (March 31, 2021): 201–11. http://dx.doi.org/10.33184/pravgos-2021.1.16.
Full textAbstract:
The financial provision of state and municipal services is being actively improved at the legislative level, and therefore is the subject of interest of jurisprudence and economics, which determines the relevance of the chosen topic. Purpose: to study scientific literature on the theoretical foundations of the concept of «finance», and regulatory legal acts of the Russian Federation related to the concepts of «financing» and «state task» for disclosing the concepts of financial provision of state and municipal services in the sphere of education. Methods: the authors use the empirical methods of comparison, description, interpretation, legal-dogmatic and as well as the method of interpretation of legal norms. Results: the authors’ interpretation of the concept of «state task» is given, it is concluded that the state task is a financial instrument in the budgetary sphere.
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Perreau-Saussine, Amanda. "BENTHAM AND THE BOOT-STRAPPERS OF JURISPRUDENCE: THE MORAL COMMITMENTS OF A RATIONALIST LEGAL POSITIVIST." Cambridge Law Journal 63, no. 2 (June 18, 2004): 346–83. http://dx.doi.org/10.1017/s0008197304006610.
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This article suggests that Jeremy Bentham's principle of utility plays a crucial role in his work as a ground not only of moral or censorial judgment but also of expositorial legal judgment. If we are to reject the characterisation of Bentham as a natural lawyer, the most coherent re-interpretation of his position, a morally sceptical interpretation of his insistence on law as a cause of social order, would be as a noble or enlightened despotism, a decision to defend utility as a politically authoritative but philosophically unjustified principle. It concludes that other rationalist legal positivists face similar versions of this dilemma.
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Putri, Annida Aqiila, and Bart Jansen. "Dynamics of Reasonableness and Fairness in a Pluralistic Legal System: Perspectives from Adat, Islamic and Civil Inheritance Law." Yuridika 36, no. 1 (January 1, 2021): 1. http://dx.doi.org/10.20473/ydk.v36i1.19170.
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Reasonableness and fairness are keystones of law. They are implemented broadly and important doctrine for civil law. However, the open nature of reasonableness and fairness allow various interpretations, influenced by the legal system, legal tradition, jurisprudence or measured on a case per case basis. Indonesia recognizes more than one kind of a legal system, making it a legal pluralist State. This article aims to describe the dynamics of the reasonableness and fairness principle within a pluralistic legal system. Indonesian inheritance laws use three different legal systems: Adat, Islam, and civil law, each provides distinctive perspectives of reasonableness and fairness. These differences may lead to a clash of interpretation or it may leave a wide room of discretion for the judges. Court judgments are analyzed to examine the implementation of such dynamics in practice. Finally, the outcome of the paper concludes whether the differences shall be embraced or whether there is a need to agree upon what is ‘reasonable’ and ‘fair’.
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BEISBEKOVA, Gulim Kuatbekovna, Venera Tuleutaevna KONUSSOVA, Kairat Eslyamkalievich ISMAGULOV, Indira Sovetovna SAKTAGANOVA, and Anar Abaikhankyzy MUKASHEVA. "Problems of Concretization of Legal Norms in Kazakhstan." Journal of Advanced Research in Law and Economics 10, no. 1 (March 31, 2019): 52. http://dx.doi.org/10.14505//jarle.v10.1(39).07.
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The study of ways to improve the quality of legal regulation is of particular relevance in modern conditions. As the practice of legal regulation confirms, one of the factors for the improvement of legality and efficiency is concretization of legal norms.
The article points out that despite a fairly high level of knowledge today there are problems of lack of unity in understanding the essence and legal nature of concretization of law in general theoretical jurisprudence, terminological inconsistency of the concept of concretization of legal norms and criteria for distinguishing this phenomenon from related interpretation and analogy of legal concepts.
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Rabinovych, Petro, and Pavlo Myrtsalo. "The Term Concept of Right and Unright in Practical and Theoretical Jurisprudence." Philosophy of law and general theory of law, no. 2 (December 22, 2021): 62–71. http://dx.doi.org/10.21564/2707-7039.2.242831.
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The article examines some modern trends in the development of domestic legislation, as well as general theoretical legal thinking. One of them is a noticeable spread in the legislative acts of Ukraine of those terms that have an outlet to the problem of legal understanding, for example, they
talk about such words as: «right», «justice», «unjust sentence», «unright agreement», «unright use», «unright actions», «unright gain». Such terminology can be directly used in legal regulatory practice, and taking into account the pluralism of legal thinking, known from ancient times to this day, inevitably there is a need for an official explanation, interpretation of one or another of the given terminological concepts.
In all the above cases, the following question will inevitably arise: the terms above are synonyms for the adjectives lawful, illegal, and are similar to them? Or, on the contrary, in the examples given above, they are talking about some other – meaningful and different – from legal / illegal – phenomenon? If we are inclined to the first answer, the question arises: for what purpose different terms were used to name the same phenomenon? If we support the second of the possible answers, then it directly leads to the problem of legal thinking.
One of the aspects of the general problem of legal thinking is the substantive allocation of the so-called phenomenon of the antipode of the phenomenon of right, – the phenomenon of unright. The urgency of solving this practically significant task is illustrated, in particular, by the fact that, for example, in the current Criminal Code of Ukraine, adjectives unright gain are used almost sixty times!
What complex of problems in legal regulation, this situation generates, can be seen by analyzing, for example, the reaction of the Constitutional Court of Ukraine regarding the inconsistency of the Constitution of Ukraine with the provisions of Art. 375 of the Criminal Code of Ukraine. Arguing this decision, the Constitutional Court of Ukraine referred to the fact that, in particular: a) formulation of this article allows possibility of abuse by the bodies of pre-trial investigation, in connection with legal clarity, unambiguity in content of the norm is lost when they are applied; b) the situation under discussion creates the possibility of an official assessment of the court decision by non-judicial bodies, which contradicts the principle of the distribution of power.
It seems remarkable that in response to the aforementioned decision of the Constitutional Court of Ukraine, almost half of those judges who took part in the consideration of this case expressed separate opinions in which they thoroughly criticized the arguments of the Court. Without resorting to a specific analysis of each of these thoughts, we state the pluralistic interpretation of the first part of the complex word «unjust» by different judges of the Constitutional Court of Ukraine. We explain it by the socially-natural heterogeneity, the interpretation of any evaluative legal concepts by various subjects of society in the process of legal regulation.
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Tawfik, Ahmed Hamdy. "The Concept of Crime in the Afghan Criminal Justice System: The Paradox between Secular, Tradition and Islamic Law: A Viewpoint of an International Practitioner." International Criminal Law Review 9, no. 4 (2009): 667–87. http://dx.doi.org/10.1163/156753609x12487030862700.
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AbstractIn modern Afghanistan, one major problem with which legal scholars struggle is identification of the concept of crime. While crime is identified and defined in the Afghani Secular Penal Code of 1976, as well in Islamic Law (Shari'ah), jurisprudence of the courts and traditions take precedence in the everyday lives of Afghanis. Court's jurisprudence and the traditional dispute-resolution system are deemed to be a product of Islamic jurisprudence, notwithstanding that, in some cases, they represent an erroneous interpretation and application of Shari'ah as this article will examine. This article focuses on the concept of crime in Islamic law and analyses the court's jurisprudence and traditional system, which are widely applied throughout different parts of Afghanistan, and seeks to identify their relationship between Islamic and secular laws and whether they are consistent with Islamic Shari'ah.
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Kasatkin, Sergey. "Redrawing the Boundaries: R. Dvorkin’s Interpretativism in the Light of Traditional Typologies of Legal Theorizing." Legal Concept, no. 4 (February 2021): 80–88. http://dx.doi.org/10.15688/lc.jvolsu.2020.4.11.
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Introduction: the paper is devoted to the interpretative concept of the outstanding American jurist Ronald Dworkin, formulated in his “Law’s Empire” (1986) and a number of other works. The subject of the paper is the characteristic of R. Dvorkin’s methodological approach. As its basis the author uses the interpretation of a “methodological model” of the thinker, proposed by the Mexican researcher Imer Flores, which is valuable for the effort to relate a (polemical and only partly explicit) approach of the American jurist with the classical criteria system of the typology of legal doctrines. Accordingly, the paper aims to identify (using the general scientific and specific scientific methods) R. Dworkin’s interpretativism in the context of the basic divisions of legal theories in modern Western (Anglo-American) jurisprudence, as well as to establish the impact of interpretativism on existing legaltheoretical typologies. As a result, the paper, first, outlines the key ideas of R. Dworkin’s doctrine, and secondly, examines I. Flores’s interpretation of the content and meaning of the interpretive methodology, thirdly, assesses the validity of such an interpretation with the justification of the status of interpretativism in the system of classical types of legal theorizing and its methodological implications. As a general conclusion, the paper argues for the status of R. Dworkin’s doctrine as a private and normative jurisprudence of the “internal point of view”. I. Flores’s thesis about the unification of traditional types of legal theories in interpretativism and transcending the dichotomy between positivism and natural law is disputed. Interpretativism challenges the established system of criteria for differentiating legal theories, rejecting a number of relevant methodological perspectives, primarily a general descriptive and morally neutral theory of law. By defending a necessary connection between law and morality, interpretativism, in fact, legitimizes the claims of natural-law concepts as to a proper explanation of “law as it is”, transferring their long-standing dispute with positivism to a new – methodological – level.
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Kozhevnikov, Vladimir Valentinovich. "The Hermeneutic Method in Modern Domestic Jurisprudence." Budapest International Research and Critics Institute (BIRCI-Journal) : Humanities and Social Sciences 2, no. 4 (November 6, 2019): 39–49. http://dx.doi.org/10.33258/birci.v2i4.605.
Full textAbstract:
This scientific article deals with the problem of the use of the hermeneutic method of obtaining knowledge of legal phenomena. The purpose of the article is to show the potential of the hermeneutic method in the field of law. In the furtherance of this goal, the following objectives were set: 1) to justify the significance of the methodological basis of jurisprudence; 2) to consider the concept of hermeneutics in the historical aspect (views of Aristotle, Wilhelm Diltey, Friedrich Schleiermacher, Friedrich Nietzsche, Hans-Georg Gadamer, Max Weber and others); 3) to analyze the views of domestic scientists who justifying the necessity of using of the hermeneutic method by the study of legal phenomena (Djangir Abbasovich Kerimov, Mikhail Mikhailovich Rassolov, Petr Moiseyevich Rabinovich, Vitaly Andreevich Suslov, Ilya Lvovich Chestnov); 4) to show weak points of the hermeneutic method in jurisprudence, arguments of opponents of this approach (Vladimir Mikhailovich Syryh, Igor Yurevich Kozlikhin, Vyacheslav Nikolayevich Zhukov and others). The result of the conducted research were the following provisions: 1) without denying some fruitfulness of the metaphysics which is the basis of the analyzed method, we notice that the hermeneutics method is not applied practically in the law because there is no the corresponding technique and it is replaced with a historical method of interpretation of legal norms. In conclusion, it should be stressed that even those scientists who placed certain research hopes on the legal hermeneutics have now begun to doubt its potential, believing that this approach of the study of the law as an independent one has not yet taken place.
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Ruff, Tibor. "A szólás- és tanszabadság elve a mózesi Törvényben és a rabbinikus jogban." DÍKÉ 6, no. 1 (December 28, 2022): 104–13. http://dx.doi.org/10.15170/dike.2022.06.01.07.
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The Torah law and rabbinic jurisprudence are the decisive (and only explicit) starting points for the researcher in the study of the principle of freedom of speech and teaching. Their partial collision in the history of interpretation and jurisprudence of Judaism led, in a fruitful way, to the recognition and enforcement of freedom of conscience and, consequently, of the principles of freedom of speech and teaching, already in antiquity – not without restrictions in the theocratic state, but widely within the framework of the Torah. In exploring these boundaries, we will also gain insight into one of the interpretation methods of the Torah as an unappealable source of law with divine authority in all its words, the so-called pilpul, which unfolded in rabbinic legal hermeneutics.
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Fayyaz, Muhammad, and Naeem Anwar Al-Azhari. "اصول، قواعد، فروق اور ضوابط فقہ کے مفاہیم Interpretations of Principles, Legal Maxims, Differences and Laws of Islamic Jurisprudence." Al-Wifaq, no. 4.2 (December 31, 2021): 151–72. http://dx.doi.org/10.55603/alwifaq.v4i2.u10.
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Islamic Jurisprudence deals with the orders of the applied command regarding the unlimited problems of mankind۔ Emergence of new issues with the passage of time in Further edition to it. For the solution to these problems and issues, the Scholars of Islamic jurisprudence have chalked out certain rules and regulations. Proper Arrangements, Understanding, and control of the prevailing issues become possible due to these rules and the work of derivation of the problems also becomes easy. These principles are called Usul Al-Fiqh (Principles of Islamic Jurisprudence) and Al-Quaa`id Al Fiqhiyyah (Legal maxims) and Dawabit-e-Fiqh (Laws of Fiqh). These are foundations of Islamic Jurisprudence, which provides modes and sources for the jurists to seek appropriate legal rules for any problem and issue. In the given article the structure and origin of these legal maxims, principles of Islamic Jurisprudence, and laws of Fiqh are discussed. As well as their difference from each other and their scholastic and technical importance have been discussed.
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Safonov, Vladimir N. "The Meaning of Scientifi c Instruments of O.A. Zhidkov for the Development of Legal American Studies." History of state and law 4 (April 29, 2021): 16–20. http://dx.doi.org/10.18572/1812-3805-2021-4-16-20.
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Author focuses attention on achievements Oleg Zhidkov. He uses different methods and investigating instruments, especially history of law and sociological jurisprudence. Oleg Zhidkov distinguishes common law and constitutional doctrines as main features instruments of U.S. Law. Common Law is technique of judicial thinking and base of interpretation with using procedural principles. U.S. Supreme Court introduce common law’s techniques for achieving new goal, protection new constitutional rights and public interest. By opinion of author problem of this approach legal uncertainty is doctrinal interpretation by Supreme Court.