Journal articles on the topic 'Legal Rationalism'
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Mikhailov, Anton Mikhailovich. "To the question on philosophical-methodological foundations of English legal positivism of the XIX century (legal teachings of J. Bentham and J. Austin)." Право и политика, no. 11 (November 2020): 57–73. http://dx.doi.org/10.7256/2454-0706.2020.11.34429.
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The subject of this research is the aggregate of philosophical ideas and methodological paradigms that underlie the concepts of the “first” legal (statist) positivism in England of the XIX century. The author traces the impact of certain philosophical trends and legal concepts of the XVIII – early XIX centuries upon the philosophical and methodological foundations of the positivist concepts of J. Bentham and J. Austin. The article describes the influence of social atomism, and exploratory rationality of Modern Age upon the “first” legal positivism of philosophical rationalism of the XVIII century. The impact of such philosophical and legal concepts as nominalism, the historical school of lawyers, and philosophical positivism of A. Comte upon the “first” legal positivism was reconstructed. The scientific novelty consists in reconstruction of the influence of an entire number of philosophical and legal ideas and concepts upon the development of “first” legal positivism. Correlation between the legal doctrine of J. Bentham, philosophical concepts of the XVIII century, and the legal teaching of T. Hobbes is underlined. The author draws the ideological parallels between the philosophical nominalism, logical paradox of D. Hume, and legal doctrines of J. Bentham and J. Austin. The author reveals the key “channels” of the impact of German Historical School upon legal positivism, describes the similarities and differences between the scientific positivism of A. Comte and the concepts of legal positivism of J. Bentham and J. Austin. The philosophical-methodological framework of the concepts of “first” legal positivism were subjected to a significant influence of the methodological paradigm of philosophical rationalism, social atomism, exploratory scientific rationality of Modern Age, and nominalism.
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Сырых, Владимир, and Vladimir Syrykh. "Russian Jurists at the Crossroads: Materialistic Rationalism or Subjective Idealism?" Journal of Russian Law 4, no. 1 (January 25, 2016): 0. http://dx.doi.org/10.12737/17233.
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The expansion of its methodological arsenal of techniques developed from the standpoint of subjective idealism: synergy, hermeneutics, phenomenology, metaphysics, and others are inherent to the modern methodology of legal research. According to Russian lawyers who advertise them, methods are so efficient that they can be used successfully to solve a significant part of the tasks that were previously unaffordable by traditionally used method of knowledge of the state and law. At the same time, the specificity of these methods use in jurisprudence are hardly developed. As a result, practices are not in widespread use of legal science. However, their provisions are used for specific research and entail a number of negative consequences. Firstly, it reduces the requirements for accuracy and validity of the scientific knowledge. Secondly, justify the use of science in the compilations of methods and eclecticism. Third, reduce the interest in socio-legal studies. Crucial means of further development of the methodology of legal research is a creative development of the dialectical method, in the Russian jurisprudence has a long history and a long tradition.
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Zhang, Peilin. "Changes in Modern Urban Planning Teaching and Theory." Open House International 44, no. 3 (September 1, 2019): 40–43. http://dx.doi.org/10.1108/ohi-03-2019-b0011.
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In order to further optimize the methods of modern urban planning, the philosophical basis, planning theory, planning measures and practice are analyzed, and some discussions are made in connection with China's planning practice. The research results show that the core of modern urban planning is constructed by traditional rationalism with classical physics as its core. Urban planning is both a technology and a social science. Whether it is traditional or modern urban planning, it has been closely linked with the legal system since its birth. It is an important direction to promote the development of urban planning discipline. The most influential rational ideas of city planning are instrumental rationality, bounded rationality and communicative rationality. Instrumental rationality derives from rational comprehensive planning, systematic planning and procedural planning; the separation-gradualism and hybrid inspection model are developed under the influence of bounded rationality and are amendments to instrumental rationality; communication planning, collaborative planning and consultative planning are developed on the basis of communicative rationality, which is one of the important development directions at present.
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Tushnet, Mark. "Some Current Controversies in Critical Legal Studies." German Law Journal 12, no. 1 (January 1, 2011): 290–99. http://dx.doi.org/10.1017/s2071832200016874.
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The first few years in the development of critical legal studies (CLS) saw an ongoing discussion of an issue that was framed as “rationalism v. irrationalism”. The labels, it now appears, were misleading, for the discussion can be better understood as concerning the utility - for purposes of orienting strategic action as well as of understanding the social order - of relatively large-scale social theories in the traditions of Marx and Weber. The distinctive contribution of CLS to leftist social thought, and the embodiment of the fact that one side in the earlier discussion more or less prevailed, is its insistence that a leftist social and political theory does not need to be grounded in that sort of social theory.
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Charlesworth, Hilary, Christine Chinkin, and Shelley Wright. "Feminist Approaches to International Law." American Journal of International Law 85, no. 4 (October 1991): 613–45. http://dx.doi.org/10.2307/2203269.
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The development of feminist jurisprudence in recent years has made a rich and fruitful contribution to legal theory. Few areas of domestic law have avoided the scrutiny of feminist writers, who have exposed the gender bias of apparently neutral systems of rules. A central feature of many western theories about law is that the law is an autonomous entity, distinct from the society it regulates. A legal system is regarded as different from a political or economic system, for example, because it operates on the basis of abstract rationality, and is thus universally applicable and capable of achieving neutrality and objectivity. These attributes are held to give the law its special authority. More radical theories have challenged this abstract rationalism, arguing that legal analysis cannot be separated from the political, economic, historical and cultural context in which people live. Some theorists argue that the law functions as a system of beliefs that make social, political and economic inequalities appear natural. Feminist jurisprudence builds on certain aspects of this critical strain in legal thought. It is much more focused and concrete, however, and derives its theoretical force from immediate experience of the role of the legal system in creating and perpetuating the unequal position of women.
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Mårtensson, Ulrika. "Al-Ṭabarī's Concept of the Qur'an: A Systemic Analysis." Journal of Qur'anic Studies 18, no. 2 (June 2016): 9–57. http://dx.doi.org/10.3366/jqs.2016.0238.
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This article seeks to define al-Ṭabarī’s concept of the Qur'an by exploring the systemic nature of al-Ṭabarī’s whole scholarly oeuvre, with reference to the political and scholarly context of debates between rationalism and traditionalism, and the development of uṣūl al-fiqh. Drawing on recent research on uṣūl al-fiqh (Vishanoff 2011) and al-Ṭabarī’s own madhhab (Stewart 2004; 2013), it is argued that al-Ṭabarī on the one hand politically agreed with the traditionalist camp regarding the need for written and publicly accessible law, and on the other hand developed his own independent legal methodology and dogma. Because of his basic agreement with traditionalism at the legal-political level, he also aligned with the traditionalist doctrine of the uncreated Qur'an, against the rationalist doctrine of the created Qur'an. Finally, it is demonstrated that al-Ṭabarī defined the uncreated Qur'an's nature in terms of rhetoric, including both grammatical-syntactic and deliberative dimensions. The significance he attributed to rhetoric through the Qur'an is reflected in his legal, exegetical, and ḥadīth methods as well as in his historical writing. Ultimately, al-Ṭabarī’s whole oeuvre was composed to persuade the public about the political need for a written and publicly accessible legal canon.
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Jowitt, Joshua. "Legal rights for animals: aspiration or logical necessity?" Journal of Human Rights and the Environment 11, no. 2 (September 30, 2020): 173–98. http://dx.doi.org/10.4337/jhre.2020.02.02.
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Whereas regulation relating to minimum standards of animal welfare is increasingly uncontroversial in contemporary popular discourse, the same cannot be said of viewing animals as legal persons possessing legally enforceable rights in and of themselves. The purpose of this article will be to explore this reticence and ask whether the continued anthropocentricity of legally enforceable rights is compatible with the very concept of law itself. The article will draw heavily on the moral writing of Alan Gewirth, engaging with his justification for why human beings themselves can make philosophically valid claims to be rightsholders. Taking Gewirthian ethical rationalism as providing a universally applicable hypothetical imperative which binds all agents to comply with its requirements, the article will move on to discuss the implications of the theory on our understanding of legal normativity. If we accept that the purpose of law is to guide action, and that legal normativity therefore operates at the level of practical rationality, the Gewirthian project necessarily limits the content of law to those norms which are compliant with the moral underpinning of all normative reasons for action. A necessary connection between law and morality can therefore be established which requires equal respect for all agents. By creating this necessary connection, it is possible to move beyond an anthropocentric conception of legal normativity to one that necessarily must instead respect the basic rights possessed by all agents – regardless of species. Legal rights for animals that are capable of acting within Gewirth's conception of agency must therefore be seen not to be a mere aspiration for a well-meaning society, but a logical necessity within any legal system.
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Grözinger, Karl E. "»Jüdische Philosophie«." Zeitschrift für Kulturphilosophie 2017, no. 2 (2017): 297–322. http://dx.doi.org/10.28937/1000107993.
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The beginning of a universal culture of rationality in Judaism did not begin in the so called »Medieval Jewish philosophy« but had its precedents in the Biblical Wisdom Literature and in Rabbinic legal rationality. The Medieval Jewish authors, therefore, did not regard the medieval Philosophy propounded by Jewish authors as »Jewish philosophy« but as a participation of Jews in just another specific phase of universal rationalism. The reason why Jewish authors in the 19th century nevertheless alleged that there existed a specific »Jewish philosophy« at the side of a German, Christian or English philosophy had its reason in the exclusion of Jewish thought from the new leading science of interpretation of human existence in Europe, namely philosophy, by German intellectuals and universities. If we despite this want to retain the term of »Jewish philosophy« we should be aware that there cannot be an essential difference to general philosophy but merely a heuristic pragmatism.
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Thompson, Lauren Macivor. "“The Reasonable (Wo)man”: Physicians, Freedom of Contract, and Women's Rights, 1870–1930." Law and History Review 36, no. 4 (November 2018): 771–809. http://dx.doi.org/10.1017/s073824801800041x.
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This article examines how ideals of contract freedom within the women's rights movement challenged medical and medical jurisprudence theories about women between 1870 and 1930. Throughout this period, medicine linked women's intellectual incapacity with problems rooted in their physical bodies. Doctors opined that reproductive diseases and conditions of pregnancy, childbirth, menstruation, and menopause rendered women disabled, irrational, and inherently dependent. Yet at the same moment, the elimination of the legal disability of coverture, and new laws that expanded women's property and earnings rights contributed to changing perceptions of women's public roles. Courts applied far more liberal understandings of sanity and rationality in property and contract cases, even when the legal actors were women. Seizing this opportunity, reformers made powerful arguments against doctors' ideas of women's “natural” mental weakness, pointing out that the growing rights to contract and transact illustrated women's rationalism and competency for full citizenship. Most significantly, these activists insisted that these rights indicated women's right to total bodily freedom—a concept that would become crucially important in the early birth control movement.
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Jabłoński, Andrzej Wojciech. "Teoretyczne ujęcia konfliktu politycznego." Wrocławskie Studia Politologiczne 22 (October 17, 2017): 21–34. http://dx.doi.org/10.19195/1643-0328.22.2.
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Theoretical approaches to political conflictThis article reconstructs and develops theoretical approaches to analysis of political conflicts in the disciplines of political science, political philosophy and sociology. In the consecutive sections of the article the author develops theoretical assumptions of liberal rationalism, agonism, political realism, structuralism and constitutional theory. These theoretical approaches differ in the attitudes towards the causes of conflict and the role of conflict in the modern political system. Liberal rationalism is a normative theory of consensus within political community based on common values. Agonism perceives conflict as an essential ingredient of politics. Political realism sees conflict as permanent element of politics on the internal and international level. Constitutional theory embraces legal rules and cultural norms that define legitimate ways of political action, through which conflicts are regulated.
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Abernathy, Charles F. "The Lost European Aspirations of U.S. Constitutional Law." German Law Journal 4, no. 6 (June 1, 2003): 595–611. http://dx.doi.org/10.1017/s2071832200016254.
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Most European and American attorneys and judges think the U.S.A. has its legal roots in English common law, and that is probably true for the many areas of U.S. law that are still controlled by the traditional common-law process of simultaneously making and applying law. Yet, with respect to constitutional law – America's greatest legal contribution to modern respect for the rule of law, the roots of the U.S. legal system are firmly planted in Europe, not England. The U.S. Constitution was inspired by French revolutionary ideas of rationalism in law; it was intended as an integrated document just like codes; and it has been interpreted by American judges to be not just a political document but binding law – law that is binding on all three branches of government, legislative, executive, and judiciary. In fact that was the holding in Marbury v. Madison, the case decided exactly two hundred years ago.
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Rogalla, Barbara. "Legal Rationalism as a Tool to Politicise the Law, with Reference to Refugee Policy in Australia." International Journal of Diversity in Organizations, Communities, and Nations: Annual Review 4, no. 1 (2006): 0. http://dx.doi.org/10.18848/1447-9532/cgp/v04/39043.
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Kwiatkowski, Paweł. "Soft Law in International Governance." Przegląd Prawniczy Uniwersytetu im. Adama Mickiewicza 7 (December 15, 2017): 93–103. http://dx.doi.org/10.14746/ppuam.2017.7.06.
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The purpose of the article is to assess how the provisions resulting from international programmatic norms in the field of human genetic data are implemented. The presented study, adopting the perspective of institutional rationalism extended to the paradigm of legalism, considers examples of the implementation of these standards in selected legal systems – Germany, the United States of America and France. The selection of the research paradigm is preceded by a theoretical introduction, which presents three ways of conceptualizing the notion of soft law in the legal sciences. Following an outline of this legal regime in positivism, and the theories of rationalization and constructivism, the author focuses on the provisions of the International Declaration on Human Genetic Data of 16 October, 2003, which are compared with the legislative initiatives of Germany, the United States of America and France, to show the influence that the choices of states has on selection of the implemented standards and how they are implemented.
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Jowitt, Joshua. "The Desirability of Legal Rights for Novel Beings." Cambridge Quarterly of Healthcare Ethics 30, no. 3 (June 10, 2021): 504–16. http://dx.doi.org/10.1017/s096318012000105x.
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AbstractThe debate around whether novel beings should be legally recognized as legitimate rights holders is one that has produced a vast amount of commentary. This paper contributes to this discourse by shifting the normative focus of moral rights away from criteria possessed by the novel beings in question, and back toward the criterion upon which we ourselves are able to make legitimate rights claims. It draws heavily on the moral writing of Alan Gewirth’s identification of noumenal agency as the source of all legitimate rights claims. Taking Gewirthian ethical rationalism as providing a universally applicable hypothetical imperative which binds all agents to comply with its requirements, the paper argues that it is at least morally desirable that any legal system should recognize the moral rights claims of all agents as equally legitimate. By extension, it is at least morally desirable that the status of legal personhood should be granted by a legal system to all novel beings who are noumenal agents, insofar as this status is necessary for rights’ legal recognition. Having established the desirability of this extension, the paper closes with an examination of recent cases involving both biological and nonbiological novel beings in order to assess their conformity with the desirable approach outlined above. The paper demonstrates that such recognition is conceptually possible, thus requiring us to move beyond the current anthropocentricity of legal systems and recognize the legitimate moral claim for legal personhood for all novel beings who possess noumenal agency.
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Findley, Michael G., Daniel L. Nielson, and J. C. Sharman. "Using Field Experiments in International Relations: A Randomized Study of Anonymous Incorporation1." International Organization 67, no. 4 (October 2013): 657–93. http://dx.doi.org/10.1017/s0020818313000271.
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AbstractEfforts to fight international money laundering, corruption, and terrorist financing depend crucially on the prohibition barring the formation of anonymous shell companies. To study the effectiveness of this prohibition, we perform the first international relations (IR) field experiment on a global scale. With university institutional review board (IRB) clearance, we posed as consultants requesting confidential incorporation from 1,264 firms in 182 countries. Testing arguments drawn from IR theory, we probe the treatment effects of specifying (1) the international standards (managerialism), (2) penalties for noncompliance with these standards (rationalism), (3) the desire to follow norms through complying with international standards (constructivism), and (4) status as a U.S. customer. We find that firms prompted about possible legal penalties for violating standards (rationalism) were significantly less likely to respond to inquiries and less likely to comply with international law compared to the placebo condition. Some evidence also suggests that the constructivist condition caused significantly greater rates of noncompliance. The U.S. origin condition and the managerial condition had no significant effects on compliance rates. These results present anomalies for leading theories and underscore the importance of determining causal effects in IR research.
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Sadooghiasl, Afsaneh, Soroor Parvizy, and Abbas Ebadi. "Concept analysis of moral courage in nursing: A hybrid model." Nursing Ethics 25, no. 1 (April 20, 2016): 6–19. http://dx.doi.org/10.1177/0969733016638146.
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Background: Moral courage is one of the most fundamental virtues in the nursing profession, however, little attention has been paid to it. As a result, no exact and clear definition of moral courage has ever been accessible. Objective: This study is carried out for the purposes of defining and clarifying its concept in the nursing profession. Methods: This study used a hybrid model of concept analysis comprising three phases, namely, a theoretical phase, field work phase, and a final analysis phase. To find relevant literature, electronic search of valid databases was utilized using keywords related to the concept of courage. Field work data were collected over an 11 months’ time period from 2013 to 2014. In the field work phase, in-depth interviews were performed with 10 nurses. The conventional content analysis was used in two theoretical and field work phases using Graneheim and Lundman stages, and the results were combined in the final analysis phase. Ethical consideration: Permission for this study was obtained from the ethics committee of Tehran University of Medical Sciences. Oral and written informed consent was received from the participants. Results: From the sum of 750 gained titles in theoretical phase, 26 texts were analyzed. The analysis resulted in 494 codes in text analysis and 226 codes in interview analysis. The literature review in the theoretical phase revealed two features of inherent–transcendental characteristics, two of which possessed a difficult nature. Working in the field phase added moral self-actualization characteristic, rationalism, spiritual beliefs, and scientific–professional qualifications to the feature of the concept. Conclusion: Moral courage is a pure and prominent characteristic of human beings. The antecedents of moral courage include model orientation, model acceptance, rationalism, individual excellence, acquiring academic and professional qualification, spiritual beliefs, organizational support, organizational repression, and internal and external personal barriers. Professional excellence resulting from moral courage can be crystallized in the form of provision of professional care, creating peace of mind, and the nurse’s decision making and proper functioning.
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Pardede, Josua Navirio, and Piere Hugo Poluakan. "Law and Post-Truth: Critical Constructivism as an Ideal Legal Reasoning Method on Indonesia’s Post-Truth Era Society." Volksgeist: Jurnal Ilmu Hukum dan Konstitusi 4, no. 1 (June 4, 2021): 1–9. http://dx.doi.org/10.24090/volksgeist.v4i1.4202.
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This article aims to look at the current reality, which is marked by the proliferation of post-truth phenomena in the community, marking the many developments in the views and perspectives of each individual who considers something as an absolute truth by shifting the existence of facts, data. , and reality. This is the reality of challenges in the current era, so that in responding to the challenges posed by the post-truth era, scientific frameworks, including law as one of the main components that interact directly with society must try to avoid the formation of analyzes that lead to absolute truth. This article is the result of legal research using secondary legal materials. The results show that, critical constructivism as a method of reasoning that determines the process of legal reasoning, is able to prove its never-ending thought process by placing a gap between materialism and idealism, and its epistemological aspects provide a simultaneous relationship between empiricism and rationalism. The results of legal interpretation through the pattern of critical constructivism will continue to be criticized as long as the results of the interpretation cannot show the truth, this process will obtain an analysis result that will never lead to the absolute truth inherent in post-truth. world.
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Chulyukin, L. D., and V. V. Guryanova. "Law-Making Activity as a Type of Legal Process." Russian Journal of Legal Studies 5, no. 4 (December 15, 2018): 38–44. http://dx.doi.org/10.17816/rjls18442.
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The article studies the problem of understanding the essence of law-making as a kind of legal process. The current procedural legislation for the creation of norms of law is analyzed. Scientific research about the nature of lawmaking is studied and modern law-making activity is taken. The law-making process is researched on the basis of philosophical approaches (dialectical materialism, logical positivism, critical rationalism, etc.), general scientific (analysis and synthesis, generalization, system analysis, abstraction, etc.) and private methods (specifically sociological method, formal legal, a method of legal interpretation). As a result of using a set of scientific methods, a systematic knowledge of the essence of the legal process is obtained. The authors have updated the idea of the current law-making process. The essence of the law-making process is defined through the system of its main features, which give it a qualitative certainty. Legislative activity, considered as a kind of the legal process, is presented as a procedural, legal, staged activity of subjects specified in regulatory legal acts aimed at creating, amending, supplementing and repealing the operation of the rules of law. The study of this problem is conducted to establish a unified approach to the definition of law-making, an indication of its procedural nature and the improvement of legislation regulating the creation of norms of law. As a result of the conducted analysis it is established that the process of law-making activity is complicated due to a large number of normative legal acts. This circumstance makes it necessary to systematize the procedural legal regulations that establish the procedure for preparing, submitting, reviewing, accepting, publishing, amending, repealing, systematizing, interpreting all normative legal acts, rules of law-making technology, etc.
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Lytvynov, O. M. "Law, culture and legal reality: critical thinking (critical rationalism) as a condition for the survival of societies in the modern world." Scientific Herald of Sivershchyna. Series: Law 1, no. 3 (April 27, 2018): 18–31. http://dx.doi.org/10.32755/sjlaw.2018.01.018.
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Kravets, Anna. "Public law and municipal leadership and territorial public self-government: legal, institutional and communicative aspects." Право и политика, no. 3 (March 2021): 47–60. http://dx.doi.org/10.7256/2454-0706.2021.3.35377.
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This article reveals the public law concept of “leadership”, theoretical grounds of municipal leadership, its role within the system of municipal democracy and territorial public self-government from the perspective of integral legal understanding and a communicative approach towards law. The goal of this research consists in the analysis of conceptual and normative legal framework of the institutions of public law and municipal leadership, impact of the institution of leadership upon development of the forms of municipal democracy in the context of Russian and foreign experience, as well as peculiarities of the influence of the institution of public law leadership upon the forms of governance in territorial public self-government The subject of this research is the scientific views, normative legal framework of regulation, organizational practice of the institution of public law and municipal leadership in territorial public self-government in the context of functionality of the forms of municipal democracy. The article employs the formal legal and comparative analysis, methods of dialectics, municipal legal hermeneutics, communicative approach, and critical rationalism in legal studies, which allows viewing the municipal leadership as a complex interdisciplinary legal and administrative institution that assists the implementation of the forms of municipal democracy, and improves the effectiveness of the territorial self-government in cooperation with branches and officials of the local self-government. The following conclusions are made: the institution of public law leadership should be viewed as interdisciplinary, which incorporates the sphere of public law on the one hand, and the sphere of state and municipal administration on the other hand; the works of the Russian and foreign researchers indicate that the concepts of transformational leadership, leadership-service and adaptive leadership can be analytically applied to the institution of municipal leadership; it is necessary to improve the institution of public law and municipal leadership, and ensure new spheres of juridification of the requirements for the heads of territorial self-government on the federal and municipal levels.
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Dunphy, Jillian L. "Healthcare professionals' perspectives on environmental sustainability." Nursing Ethics 21, no. 4 (October 7, 2013): 414–25. http://dx.doi.org/10.1177/0969733013502802.
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Background: Human health is dependent upon environmental sustainability. Many have argued that environmental sustainability advocacy and environmentally responsible healthcare practice are imperative healthcare actions. Research questions: What are the key obstacles to healthcare professionals supporting environmental sustainability? How may these obstacles be overcome? Research design: Data-driven thematic qualitative analysis of semi-structured interviews identified common and pertinent themes, and differences between specific healthcare disciplines. Participants: A total of 64 healthcare professionals and academics from all states and territories of Australia, and multiple healthcare disciplines were recruited. Ethical considerations: Institutional ethics approval was obtained for data collection. Participants gave informed consent. All data were de-identified to protect participant anonymity. Findings: Qualitative analysis indicated that Australian healthcare professionals often take more action in their personal than professional lives to protect the environment, particularly those with strong professional identities. The healthcare sector’s focus on economic rationalism was a substantial barrier to environmentally responsible behaviour. Professionals also feared conflict and professional ostracism, and often did not feel qualified to take action. This led to healthcare professionals making inconsistent moral judgements, and feeling silenced and powerless. Constraints on non-clinical employees within and beyond the sector exacerbated these difficulties. Discussion: The findings are consistent with the literature reporting that organisational constraints, and strong social identification, can inhibit actions that align with personal values. This disparity can cause moral distress and residue, leading to feelings of powerlessness, resulting in less ethical behaviour. Conclusion: The data highlight a disparity between personal and professional actions to address environmental sustainability. Given the constraints Australian healthcare professionals encounter, they are unlikely to shift to environmentally responsible practice without support from institutions and professional associations. Professional development is required to support this endeavour. The poor transference of pro-ecological behaviour from one setting to another is likely to have international implications for healthcare practice.
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BRANCO, Mauro De Paula. "DA DISCÓRDIA À SOLUÇÃO ADEQUADA DE CONTROVÉRSIAS: A BUSCA POR MECANISMOS ALTERNATIVOS PARA SATISFAÇÃO ENTRE AS PARTES CONFLITANTES." Percurso 1, no. 28 (January 28, 2019): 82. http://dx.doi.org/10.21902/revpercurso.2316-7521.v1i28.3420.
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RESUMOO presente artigo científico possui como objetivo demonstrar ao leitor a maneira como as relações processuais são, ao longo da história, tratadas dentro do Direito e como é possível proporcionar mecanismos diversos para a solução alternativa de conflitos. Para tanto, dentro de uma análise epistemológica, a qual se vale do racionalismo para demonstrar quais as possíveis maneiras de se chegar a consensos válidos, judicial ou extrajudicialmente. O método pretendido é o indutivo, levando o interprete a entender quais as possibilidades de se adentrar em uma relação contenciosa, mas que pode se resolver consensualmente. PALAVRAS-CHAVE: Controvérsias; Positivismo Jurídico; Satisfação; Autocomposição; Soluções Alternativas; Mediação; Conciliação; Métodos Adequados. ABSTRACTThis article aims to demonstrate to the reader the way in which procedural relationships are dealt with within the Law and how it is possible to provide diverse mechanisms for alternative dispute resolution. To do so, within an epistemological analysis, which uses rationalism to demonstrate the possible ways to reach valid consensus, judicially or extrajudicially. The intended method is the inductive, leading the interpreter to understand the possibilities of entering into a contentious relationship, but that can be resolved consensually. KEYWORDS: Controversies; Legal Positivism; Satisfaction; Self; Composition; Alternative Solutions; Mediation; Conciliation; Appropriate Methods.
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Baum, Manfred. "Kants praktischer Platonismus." Kantian journal 38, no. 4 (2019): 7–33. http://dx.doi.org/10.5922/0207-6918-2019-4-1.
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At the centre of discussion lies the reception of Plato’s philosophy, particularly his theory of Ideas, in Kant’s moral philosophy, his ethics and his doctrine of right. Kant saw himself as a follower of Platonism insofar as its anti-empiricist principles of human conduct are concerned, although his own version of practical rationalism differs considerably from Plato’s. This is also true of Kant’s conception of freedom and of human rights. The greatest impact on Kant’s moral philosophy is due to the doctrine of the two worlds, the mundus sensibilis and the mundus intelligibilis, which did not originate in Plato himself, but in the Jewish Platonist Philo of Alexandria. Kant reinterpreted this doctrine by taking the intelligible world as a moral world consisting of free rational agents who ought to transform the empirical world of human society and history according to the norms and standards of moral laws. This was meant to be a programme for a moral reform of the human world, both with regard to individual morality and to the cosmopolitical task of the establishment of an international order of legal institutions. Kant’s practical Platonism insists on the creation of a moral world order through human actions that take their lead from pure practical reason.
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Sabet, Amr G. E. "The Just War and Jihad." American Journal of Islam and Society 24, no. 4 (October 1, 2007): 98–100. http://dx.doi.org/10.35632/ajis.v24i4.1514.
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The fifteen chapters of this book bring together scholars from a variety offields to examine and analyze what they perceive to be a relationshipbetween religion and violence. Generating a feeling of déjà vu, they rehashpreviously developed assumptions, arguments, and biases that tend to ignoreunderlying causes related to the “existence of the sacred,” for reasons apparentlybeyond the domain of secular comprehension. The articles reiterateconventional secular arguments about the dangers of religious convictionson “peace” and tend to vary in quality and consistency, which reflects on thebook’s overall merit.Although it is not feasible to go into each chapter’s details, it is importantto underscore their basic thrust and common theme: the issue of legitimationand what confers legitimacy on action, be it violent in nature, such asin war or conflict, or simply legal and organizational. Hector Avalos (chapter6) puts it candidly. In the “relative” framework of “empirico-rationalism,”he argues that religious violence is always “immoral,” positing that “life,” asa manifestation of that which “exists,” is worth more than that which does notexist (p. 113). However, this does not preclude war in the absolute. Onearrives at this conclusion after reading J. Harold Ellens’ “The Obscenity ofWar” (chapter 2) as well as the Committee for the Scientific Examination ofReligion’s (CSER) “Protocol on Religion, Warfare, and Violence” (chapter 15) ...
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Kozak, Małgorzata. "Obrona nowożytnej koncepcji praw dziecka. Kilka refleksji w kontekście myśli pedagogicznej Jana Jakuba Rousseau." Problemy Wczesnej Edukacji 29, no. 2 (June 30, 2015): 23–32. http://dx.doi.org/10.5604/01.3001.0008.5658.
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The presented text focuses on the normative concept of the rights of the child. The inspiration to re-read this currently dynamic pedagogical and legal category is the persona and ideas of Jean- Jacques Rousseau. The presented reflections are an attempt at a new interpretation of the category of children’s rights in the context of pedagogical naturalism and the rationalism of a philosopher of the Enlightenment. This text may become an argument in defense of the concept of basing the relations between adults and children on the ideas of children’s rights. We are faced with the following question: To what extent does the category of children’s rights, as determined by positive law, and its ensuing implications in terms of children’s status and their relations with adults, result from the nature of man and society, and to what extent do they constitute a mere “pretence of decency”, becoming an enslaving category? Given the degraded nature of man, how can we justify the need to regulate children’s rights and develop education based on these rights, and to what extent do these rights in fact contribute to this degradation, becoming a source of children’s suffering? Contrary to appearances, the answers to these questions are not unequivocal. This text attempts to re-read and re-analyze the fundamental rights of the child set forth in the Convention on the Rights of the Child and the main legal regulations that form its basis with reference to the ideas of the Enlightenment philosopher. The defense of the contemporary concept of children’s rights with reference to the thought of J.J. Rousseau is also a critical voice in the debate on the assumptions, form, and implementation of children’s rights in modern society.
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Suniehin, S. O. "Anthropocentrism as a paradigm of legal science: historical origins and modern context." INTERPRETATION OF LAW: FROM THE THEORY TO THE PRACTICE, no. 12 (2021): 237–51. http://dx.doi.org/10.33663/2524-017x-2021-12-41.
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The article is devoted to the study of the historical origins of anthropocentrism as a basic paradigm of developmentof modern jurisprudence and the peculiarities of its transformation in today’s conditions. It is noted that with the beginning of the Renaissance anthropocentrism finally began to take shape in a fundamental system of ideas and principles of philosophical and ideological significance, which laid radical changes in European public consciousness associated with the formation of an autonomous worldview, which is completely self-sufficient, free and does not depend on any supernatural influences. In the future, these ideas were significantly developed during the Reformation and the Enlightenment, which became a natural consequence of the establishment of the principle of individualism in social life. It is on the basis of methodological ideas of the Enlightenment was finally formed liberal ideology with an appropriate system of its main trends in various sectors and areas of public life. Emphasis is placed on the fact that during a long historical period, liberal ideology has passed a complex and contradictory path of its development, as a result of which it has acquired the qualities of global scale and the basic basis of building a modern democratic state governed by the rule of law. The peculiarity of the current stage of development of liberalism is the gradual radicalization of the content of its main provisions, which is associated with rapid scientific and technological progress and the functioning of a new information and technological reality, within which each individual receives almost unlimited opportunities to create and disseminate an ideas and concepts of their virtual existence, including any identities. As a result of research the following conclusions are made: 1. Centuries of social practice of free development of individuals in our time has led to a special type of civilization, the main feature of which is that it develops in opposition to the traditional type of culture, which increasingly takes aggressive forms of expression at the macro and micro levels. In this context, we are talking about the fact that modern radical liberalism (libertarianism) rejects the objective and true essence of the surrounding phenomena and processes, thus turning any object of scientific or other way of knowing the diverse reality into a subjective opinion about it. 2. Modern liberal ideology and postmodernist discourse significantly complicates the main task of legal science –the development and systematization of objective knowledge about state and legal phenomena, the laws of their functioning and development. The latter, in turn, is due to the fact that the unlimited freedom to choose the original axiomatic principles of scientific activity, the basic semantic contexts and values of its implementation, leads to many answers to the challenges posed by legal science. In this way, the only scientific truth based on the so-called «dogmatic» or «sacred» component of a certain culture, which constitutes the whole process of further proving the correctness or falsity of a certain idea, concept or theory with the corresponding rationale, is denied. Keywords: anthropocentrism, legal science, humanism, law, liberalism, rationalism, postmodern, Internet, virtual reality.
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Khasanova, Takhmina G. "MODERN TAJIKISTAN MEDIA DISCOURSE IN THE CONDITIONS OF LANGUAGE POLICY TRANSFORMATION." ISSUES OF ETHNOPOLITICS, no. 2 (2020): 102–13. http://dx.doi.org/10.28995/2658-7041-2020-2-102-113.
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At the epicentre of this research is the issue of language policy in the framework of transformation processes in the Republic of Tajikistan, which is reflected in the country’s media discourse. Initially, the author draws attention to the fact that the Tajik media, considered the most professional and free in Central Asia, during the period of the cardinal change of historical milestones were distinguished by tendentiousness, turning into a thoughtless machine for directives implementation. The article presents the author’s independent Tajikistan media main stages classification and gives a succinct description of each of them. The author substantiates the status of language policy subjectivity. The multi-vector, rationalism and balance of language policy in the Republic of Tajikistan is particularly noted. The author carries out a comparative analysis of some former socialist camp countries experience due to socio-linguistic goals related to the state language promotion and the special legal status assignment to the Russian language. Official statistics are presented on the quantitative distribution of the republic’s population by gender, nationality and mother tongue, in accordance with which the media discourse in the context of language policy is analyzed. In conclusion, a number of main criteria for the language policy pursued by the Tajik authorities are listed, in accordance with which the Tajik language policy is highly praised by experts.
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Alpa, Guido. "Il diritto giurisprudenziale e il diritto "vivente". Convergenza o affinitŕ dei sistemi giuridici?" SOCIOLOGIA DEL DIRITTO, no. 3 (February 2009): 47–81. http://dx.doi.org/10.3280/sd2008-003002.
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- One of the many criteria used to classify legal systems in the course of the history of comparative law is that of "legal sources". On the basis of this criterion of classification, systems in which legislative sources prevail are distinguished from spontaneous sources so the law as enacted by the legislator from the law as consolidated by means of customs, systems in which law is written from those in which the law is the result of practice, systems in which written law is codified from those based on law created by judges. Although they consider these classifications to be abstract, approximate and merely indicative, lawyers end up giving them credit, preferring to simplify paradigms rather than consign tradition to the past. However, there is a widespread belief nowadays that, while legal systems have their roots in different historical, cultural and interpretative experiences, they are tending to grow ever closer and converge, at least in Europe, as a result of European Union law, and in the Western world as a whole, as a result of market requirements and so of the rules dictated by the globalisation of economic relations. The natural tendency of legal systems to cater for requirements of rationalism and pragmatism also favour this process. As a result of a thorough revision of the categories inherited from tradition, among other things, it is no longer feasible to portray the Western world's systems as in antithesis, but more as in affinity, as they are "mixed" in nature: all of them actually feature both written and unwritten sources and all of them have variable structures, as written sources have prevailed at one time in history and unwritten sources at another time. Of course there are differences between the ways in which the administration of justice, the structure of the courts, the process of forming and interpreting the law and the application of the criteria of interpretation are organised, but these divergences have ultimately been substantially attenuated in the course of recent decades. Building on the emergence of jurisprudence, in the form of case law, on its configuration as a source of law and on the accreditation of the concept of "living law", as the law that is actually applied by its interpreter, sometimes in creative ways, as well as the affirmation of professional codes of conduct and self-discipline, the Italian system now takes the form of a "mixed" and "elastic" system that, it may be argued, even verges on the "mild".
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Shachin, Svyatoslav. "The philosophy of dialogue by Y. Habermas and M. Bakhtin in the context of comparing of the socio-cultural foundations of the German and Russian philosophical traditions." KANT 37, no. 4 (December 2020): 328–36. http://dx.doi.org/10.24923/2222-243x.2020-37.67.
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The article explores how the socio-cultural conditions of Germany and Russia affect the development of thought itself when revealing the category of dialogue and how the socio-cultural identity of thinkers is expressed in the philosophy of dialogue. The original sociology of the theory of dialogue by Y. Habermas and the ontology of the theory of dialogue by M. M. Bakhtin are shown. The main achievements of each of the authors in the development of the category of dialogue are traced. Y. Habermas justified the communicative mind, rooted in the language, through which it is possible to achieve mutual understanding between the participants of speech communication. On this path, a common interest can be found between the conflicting classes, and then, thanks to the activities of a democratic legal state, this interest can be realized, which will lead to a reasonable social structure. M. Bakhtin justified the dialogic nature of an act that brings something new to the world, which is not foreseen by the logic of calculation. He discovered and proved the existence of special communication practices in which collective experiences of the connection between the human community and eternity and infinity can be obtained. These practices cannot be completed and bring positive content in the form of a specific norm of activity. The correlation of the foundations of German and Russian philosophical cultures leads to the formulation of borderline questions about the possibility of a synthesis of German rationalism and Russian spirituality.
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Zicklin, Gilbert. "Deconstructing Legal Rationality:." Marriage & Family Review 21, no. 3-4 (July 12, 1995): 55–76. http://dx.doi.org/10.1300/j002v21n03_04.
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Bonfante, Francesca. "Spatialized corporatism between town and countryside." SHS Web of Conferences 63 (2019): 02003. http://dx.doi.org/10.1051/shsconf/20196302003.
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This contribution deals with the relationship between town planning, architectural design and landscape in the foundation of “new towns” in Italy. In doing so, I shall focus on the Pontine Marshes, giving due consideration to then emerging theories about the fascist corporate state, whose foundation act may be traced back to Giuseppe Bottai’s “Charter of Labour”. This political-cultural “model” purported a clear hierarchy between settlements, each bound for a specific role, for which specific functions were to be assigned to different parts of the city. Similarly, cultivations in the countryside were to specialise. In the Pontine Marshes, Littoria was to become a provincial capital and Sabaudia a tourist destination, Pontinia an industrial centre and Aprilia an eminently rural town. Whereas the term “corporatism” may remind the guild system of the Middle Age, its 1930s’ revival meant to effectively supports the need for a cohesive organization of socio-economic forces, whose recognition and classification was to support the legal-political order of the state. What was the corporate city supposed to be? Some Italian architects rephrased this question: what was the future city in Italy of the hundred cities? Bringing to the fore the distinguishing character of the settlements concerned, and based on the extensive literature available, this contribution discusses the composition of territorial and urban space, arguing that, in the Pontine Marshes, this entails the hierarchical triad farm-village-city, as well as an extraordinary figurative research at times hovering towards “classicism”, “rationalism” or “picturesque”. Composition and figuration are therefore not homogeneous, nor mere expressions of the fascist regime. They show instead a constant research, between aesthetics and practice, of an idea of modern city, of public space, of balance between city and countryside.
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Essert, Christopher. "LEGAL OBLIGATION AND REASONS." Legal Theory 19, no. 1 (January 30, 2013): 63–88. http://dx.doi.org/10.1017/s1352325212000249.
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According to the legal rationalist, the law claims to give its subjects reasons for action. The leading legal rationalist, Joseph Raz, says, “the law claims that the existence of legal rules is a reason for conforming behaviour.” Putting the same point more casually, he writes: The law sets things straight: telling people “this is what you should do and whether you agree that this is so or not, now that it is the law that you should you have the law as a new, special kind of reason to do so.” Jules Coleman, who also at times plays the part of the legal rationalist, agrees: The prevalent view among legal positivists today is that law purports to govern conduct as a practical authority. The distinctive feature of law's governance on this view is that it purports to govern by creating reasons for action. Or more succinctly, “Law claims to create reasons for acting.”
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Azuelos-Atias, Sol. "The rationality of legal argumentation." Pragmatics and Cognition 17, no. 2 (August 18, 2009): 383–401. http://dx.doi.org/10.1075/pc.17.2.08azu.
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According to Dascal (1998), controversy is characterised by a special kind of rationality, one result thereof being the unique contribution of this kind of polemics to the growth of knowledge. This, in turn, implies that complete cooperation may be detrimental for the efficiency of communication. In this article I discuss the kind of rationality that characterises controversy in legal discourse, in order to provide additional support to Dascal’s thesis about the uniqueness of the rationality of this kind of polemic exchange. I present empirical evidence supporting the conclusion that we may characterise the rationality inherent in controversy by its tolerance to inconsistency; I elucidate the tolerance to inconsistency of the rationality of legal polemic by showing that the norms recommended by the Israeli Supreme Court in the domain of conjugal relationships between men and women verge on inconsistency: On the one hand, the legal system defends the right of women over their bodies, including a woman’s right to establish a romantic relationship, regardless of the nature of the relationship she has with other men; on the other hand, the court acknowledges a man’s uncontrolled tendency to impose monogamous behaviour on his female partner.
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Lenoble, Jacques, François Ost, and Iain Stewart. "Founding Myths in Legal Rationality†." Modern Law Review 49, no. 4 (July 1986): 530–44. http://dx.doi.org/10.1111/j.1468-2230.1986.tb01702.x.
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Heydebrand, Wolf. "Process Rationality as Legal Governance." International Sociology 18, no. 2 (June 2003): 325–49. http://dx.doi.org/10.1177/0268580903018002002.
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Ahmed, Asad Q., and Robert Gleave. "Rationalist Disciplines and Postclassical Islamic Legal Theories." Oriens 46, no. 1-2 (January 1, 2018): 1–5. http://dx.doi.org/10.1163/18778372-04601001.
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GARDIES, JEAN-LOUIS. "The Fundamental Features of Legal Rationality." Ratio Juris 1, no. 3 (December 1988): 241–51. http://dx.doi.org/10.1111/j.1467-9337.1988.tb00017.x.
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Prochwicz-Studnicka, Bożena. "Usul al-fi qh. Czym są klasyczne sunnickie „korzenie/podstawy wiedzy o prawie”?" Czasopismo Prawno-Historyczne 65, no. 1 (November 2, 2018): 11–51. http://dx.doi.org/10.14746/cph.2013.65.1.01.
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Usul al-fi qh is one of the disciplines of fiqh (the science of religious law in Islam), called for simplicity the theory of law, but actually comprising elements – from the Western perspective – of both theory and philosophy of law, theology, logic, epistemology and linguistics. Usul-al-fi qh literature was written until the end of the classical period in the history of Islamic law, i.e. until roughly the 19th century when the world of Islam came into contact on a larger scale with Western civilisation. As a result, Islamic law entered its modern era. The fi rst works on the theory of law (which have not survived or survived only in fragments) were written in the 10th century – at a time when legal practice had already been well established. A stimulus for the emergence of the theory of law most probably came from Iraq where the intellectual traditions of antiquity were still alive, especially Greek philosophical rationalism. It can be claimed that the theory of law developed by combining rationalistic and traditionalistic ideas in Muslim legal thought. Being an embodiment of this merger, the theory of law owed its beginnings to the community of Baghdad jurists gathered around the Shafi ʻte Ibn Surayj (d. 918). In the legal Sunni tradition, the theory of law was meant as a science of the sources of divine laws (rules), bringing order to human reality, and the methods of deriving them from revelation. These were usul – literally meaning ‘roots/foundations’ (of fiqh). They were made up of the revelation included in the Quran and the Sunna of the Prophet Muhammad, as well as a consensus of the mujtahids (ijmaʻ) and the method qiyas (most often understood as an analogy). These were the four basic ‘sources’ of law. There were also the so-called controversial ‘sources’ that were not recognised by all the schools of law but which comprised juristic preference (istihsan), custom (urf) or the principle of blocking actions that might lead to evil (sadd adh-dhara’iʻ). The theory of law was meant to serve the mujtahids (jurists taking up ijtihad or individual juristic effort aimed at deriving a rule for a specifi c case in reliance on the texts of the Quran and Sunna, rules of their interpretation and specifi c methods of juristic reasoning). In interpreting the sense of the texts, the concept of qara’in – contextual indicators – was adopted without, however, developing rules for their identifi cation. For this reason, the theory of law made it practically possible to justify individual views, which were recognized as following from the intention of the revealed texts. Because of the conviction about the divine origins of Islamic law (Shariʻa), a distinctive feature of usul al-fi qh was its embedding in a theological structure with which it made up an organic whole. Moreover, the theory of law was a highly inconsistent discipline because of the selective nature of borrowings from Greek logic and philosophy, adoption of various methods of juristic reasoning, or, fi nally, various fashions of presenting content in individual works. In turn, the common and constant features of this cumulative tradition of usul al-fi qh, which made the discipline a unity, ollowed from resting the whole legal system on four basic sources of law, developing the concept of abrogation and interpreting the sense of the Quranic and sunnaic utterances. In the early 20th century, with ever stronger voices heard in juristic-theological discourse, advocating the adoption of the rationalistic position, a multitude of proposals were put forward to review the classical theory of usul al-fi qh so that it could be practically used when faced with the needs of modern society.
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Афанасьевский, Вадим Леонидович. "METHODOLOGICAL FOUNDATIONS OF THE CONCEPT OF GENERAL THEORY OF LAW J.-L. BERGEL." Vestnik Samarskogo iuridicheskogo instituta, no. 1(42) (March 22, 2021): 14–23. http://dx.doi.org/10.37523/sui.2021.42.1.002.
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Предметом статьи является экспликация методологического базиса разработанной французским правоведом Жаном-Луи Бержелем концепции общей теории права. Автор фиксирует, что методология этой конструкции отличается принципиальной спецификой от классического рационализма научного знания. Бержель для разработки проблем теории права использовал импрессионистский метод, принципиально выходящий за рамки научной методологии. Это приводит к тому, что читатель превращается в соавтора, выстраивая свое представление о предмете теории права. Причем фантазия автора и читателя ничем не ограничена, ибо она уходит от исторических трансформаций развития правовой реальности и традиций теоретического правового дискурса. В статье показано, что предложенная методология привела Бержеля к размытости и непроясненности понятийного аппарата и «терминологическому анархизму». Представив свой анализ его концепции общей теории права, автор статьи приходит к выводу, что основанием методологии Бержеля являются характерные для французской социогуманитарной мысли принципы экзистенциальной философии и постмодернистских штудий. Именно в этом коренится отсутствие целостности в теоретических построениях, наличие эклектизма и туманности употребляемых терминов и понятий. В эту парадигму прекрасно укладывается импрессионистский метод, используемый французским правоведом. Если читатель сам определяет понимание читаемого текста, то смысл уже не определяется объективной реальностью. Он выступает проблемой изолированного индивида, находящегося в произвольно выстроенном им фрагментированном мире, в том числе и мире права The subject of the article is the explication of the methodological basis of the concept of the general theory of law developed by the French jurist Jean-Louis Bergel. The author notes that the methodology of this construction differs in fundamental specificity from the classical rationalism of scientific knowledge. Bergel used the impressionist method to develop problems in the theory of law, which fundamentally went beyond the framework of scientific methodology. This leads to the fact that the reader turns into a co-author, building his own idea of the subject of the theory of law. Moreover, the imagination of the author and the reader is not limited by anything, for it moves away from the historical transformations of the development of legal reality and the traditions of theoretical legal discourse. The article shows that the proposed methodology led Bergel to a vague and unclear conceptual apparatus and «terminological anarchism». Having presented his analysis of his concept of the general theory of law, the author of the article comes to the conclusion that the basis of Bergel's methodology is the principles of existential philosophy and postmodern studies that are characteristic of French socio-humanitarian thought. This is the root of the lack of integrity in theoretical constructions, the presence of eclecticism and the vagueness of the terms and concepts used. The impressionistic method used by the French jurist fits perfectly into this paradigm. If the reader himself determines the understanding of the text being read, then the meaning is no longer determined by objective reality. It acts as a problem of an isolated individual who is in a fragmented world arbitrarily built by him, including the world of law
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Ivanskiy, Valeriy P., and Sergey I. Kovalev. "THE ROLE OF RATIONALITY PHILOSOPHY IN LEGAL STUDIES (PART I)." RUDN Journal of Law 23, no. 1 (December 15, 2019): 48–61. http://dx.doi.org/10.22363/2313-2337-2019-23-1-48-61.
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The relevance of the article, which consists of two parts, is that the various theories of rationality presented only in philosophical works are considered. Meanwhile, it should be noted that in recent decades in scientific works on jurisprudence there is a clear trend of borrowing such terms from philosophy as «classical», «non-classical» or «post-non-classical» science in the description of a concept of law. Nevertheless, in legal studies there is still no concept of rationality, the criteria for its classification, allowing to describe the diversity of manifestations of legal reality. The purpose of the study is: 1) to find new non-classical foundations for the development of legal knowledge; 2) to substantiate the point of view that the category of "scientific rationality" and its typology used in philosophy, it is necessary to introduce into scientific use of legal science, which will push the boundaries of knowledge of legal reality; 3) to describe the features of understanding of the term "scientific rationality" in law in the context of its classification into the following two groups: classical and neoclassical (post-classical), as well as non-classical and post-classical. In the process of studying the philosophy of rationality in legal studies used a diverse set of methodological tools: 1) General philosophical methods (dialectical and idealistic); 2) General scientific methods - analysis and synthesis, deduction and induction, analogy, comparison; 3) and private (special) - logical, comparative-legal, formal-legal, normative-dogmatic; 4) method of interpretation, including the method of problem-theoretical reconstruction. The main results of achieving the goal of the study were proposals on: 1) introduction of the concept of "types and models of legal rationality" into the scientific circulation of jurisprudence; 2) classification of legal rationality into classical and non - classical types and corresponding models-neoclassical (post-classical) and post-non-classical. It should be noted that the post-classical and post-non-classical styles of legal thinking are evolved versions, respectively, of the classical and non-classical types of legal rationality. The basis for the classification of types of scientific rationality in legal science was the anthropological factor-consciousness homo juridicus and methodological tools with which legal consciousness is known. The novelty of the study is that the above classification of epistemological paradigms allows us to look at the law as a multilevel reality, which is simultaneously inherent in the two mechanisms of its Constitution - external and internal. Moreover, the presented criteria-based classification of legal rationality is the basis for the development of legal knowledge.
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Ivanskiy, Valeriy P., and Sergey I. Kovalev. "THE ROLE OF RATIONALITY PHILOSOPHY IN LEGAL STUDIES (PART II)." RUDN Journal of Law 23, no. 2 (December 15, 2019): 184–99. http://dx.doi.org/10.22363/2313-2337-2019-23-2-184-199.
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The relevance of the article, which consists of two parts, is that the various theories of rationality presented only in philosophical works are considered. Meanwhile, it should be noted that in recent decades in scientific works on jurisprudence there is a clear trend of borrowing such terms from philosophy as “classical”, “non-classical” or “post-non-classical” science in the description of a concept of law. Nevertheless, in legal studies there is still no concept of rationality, the criteria for its classification, allowing to describe the diversity of manifestations of legal reality. The purpose of the study is: 1) to find new non-classical foundations for the development of legal knowledge; 2) to substantiate the point of view that the category of “scientific rationality” and its typology used in philosophy, it is necessary to introduce into scientific use of legal science, which will push the boundaries of knowledge of legal reality; 3) to describe the features of understanding of the term "scientific rationality" in law in the context of its classification into the following two groups: classical and neoclassical (post-classical), as well as non-classical and post-classical. In the process of studying the philosophy of rationality in legal studies used a diverse set of methodological tools : 1) General philosophical methods (dialectical and idealistic); 2) General scientific methods - analysis and synthesis, deduction and induction, analogy, comparison; 3) and private (special) - logical, comparative-legal, formal-legal, normative-dogmatic; 4) method of interpretation, including the method of problem-theoretical reconstruction. The main results of achieving the goal of the study were proposals on: 1) introduction of the concept of “types and models of legal rationality” into the scientific circulation of jurisprudence; 2) classification of legal rationality into classical and non - classical types and corresponding models-neoclassical (post-classical) and post-non-classical. It should be noted that the post-classical and post-non-classical styles of legal thinking are evolved versions, respectively, of the classical and non-classical types of legal rationality. The basis for the classification of types of scientific rationality in legal science was the anthropological factor-consciousness homo juridicus and methodological tools with which legal consciousness is known. The novelty of the study is that the above classification of epistemological paradigms allows us to look at the law as a multilevel reality, which is simultaneously inherent in the two mechanisms of its Constitution - external and internal. Moreover, the presented criteria-based classification of legal rationality is the basis for the development of legal knowledge.
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Qian, X. Y. "Traditional Chinese law v. Weberian legal rationality." Max Weber Studies 10, no. 1 (2010): 29. http://dx.doi.org/10.15543/mws/2010/1/5.
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Travis, M. "NON-NORMATIVE BODIES, RATIONALITY, AND LEGAL PERSONHOOD." Medical Law Review 22, no. 4 (May 21, 2014): 526–47. http://dx.doi.org/10.1093/medlaw/fwu015.
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Cirace, John. "The theory of economic and legal rationality." International Advances in Economic Research 4, no. 3 (August 1998): 302. http://dx.doi.org/10.1007/bf02294907.
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Weinrib, Ernest J. "Legal Formalism: On the Immanent Rationality of Law." Yale Law Journal 97, no. 6 (May 1988): 949. http://dx.doi.org/10.2307/796339.
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Zykov, Dmitrii Valer'evich. "Limits of Rationality Types Applicability in Legal Activity." Manuskript, no. 6 (June 2020): 82–89. http://dx.doi.org/10.30853/manuscript.2020.6.14.
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Accatino, Daniela. "Legal evidence theory: are we all “rationalists” now?" Revus, no. 40 (August 14, 2020): 85–101. http://dx.doi.org/10.4000/revus.5692.
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Capps, Patrick, and Henrik Palmer Olsen. "Legal Autonomy and Reflexive Rationality in Complex Societies." Social & Legal Studies 11, no. 4 (December 2002): 547–67. http://dx.doi.org/10.1177/096466390201100404.
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Meiloud, Ahmed. "A Conflict Between Divine texts and Human Legal Needs?" Islamic Africa 7, no. 1 (April 12, 2016): 81–89. http://dx.doi.org/10.1163/21540993-00701006.
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This paper presents excerpted translations from a longer text by the Moroccan jurist, Ahmad al-Raysuni, which highlight a key facet of contemporaneous Muslim legal debates about law and religion. They especially focus on the thorny question of whether textual sources are liable to conflict with pure rational legal considerations and hence must be sidestepped to protect personal or public interests. In these excerpts Raysuni defends his position, and that of many of the so-called ‘moderate’ Islamists, who–while decry the rigid literalism of other traditionalists—maintain that explicit textual injunctions could never conflict with rationality. They believe, as Raysuni asserts here, that any conceived contradiction between texts and rationality is either a misconception of rationality or a misunderstanding of texts.
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van Aaken, Anne. "Experimental Insights for International Legal Theory." European Journal of International Law 30, no. 4 (November 2019): 1237–62. http://dx.doi.org/10.1093/ejil/chaa009.
Full textAbstract:
Abstract Insights from experimental psychology and economics have rarely been applied to the study of international law and never to the study of international legal theory. This article applies them to socio-legal international theory that has grosso modo two important background paradigms with several variants: rationalist and constructivist. In both paradigms, the interest in understanding and explaining international law by uncovering causal mechanisms in international cooperation and compliance and in asking how cooperation is sustained in a system as decentralized as international law is paramount. In both, fundamental assumptions regarding the behaviour of actors are made. However, regardless of the theoretical standpoint, both fall short of experimental evidence about their behavioural assumptions. The article uses experimental evidence provided by public good games as a conceptualization of how social order is constructed and upheld in systems without central authority such as international law. It aims to illuminate the behavioural basis of important building blocks of international cooperation and law by discussing the preferences of states and strategic interaction, reciprocity, sanctions, communication and trust as well as consent and legitimacy, reflecting on what the experimental insights teach us on the assumptions of rationalist and constructivist approaches to international legal theory. These experiments are one means to test behavioural assumptions in international legal theory.