CEEOL - Browse Subjects Result

We kindly inform you that, as long as the subject affiliation of our 300.000+ articles is in progress, you might get unsufficient or no results on your third level or second level search. In this case, please broaden your search criteria.

Law and Morals. Prolegomena (I)

Author(s): Nicolae V. Dură / Language(s): English Issue: 2/2011

Abstract: In the pages of this study we have emphasized the relation between Law and Morals, between what is just and in just, talking thus not only about the nature of the Law and of the Morals, but also about the relation between the juridical norms and the moral principles. An evaluation of the historical process of the emergence of Law and Morals – be it brief – has enabled us to no Law has evolved step by step from the Moral norms and from the customs of a moral nature, hence the conclusion that the positive juridical norms should also express, in their content, values of a moral nature. In fact, from an ontological point of view, between Law and Morals could not be a divorce, since the notions of “righteousness” and of “justice” themselves are categories of Morals. That is why the theory of juridical positivism, according to which the rule of Law can exist in the absence of Morals since the state is the only source of Law, has no credibility both from a historical and philosophical and from a juridical point of view. Finally, the increasingly higher interest of the philosophers and jurists of our time to perceive and express the content of the nature of Law adequately and, ipso facto, the relation between this one and Morals, was also determined by the international and European legislation regarding the human fundamental rights and liberties.

More...

Prawo naturalne w ujęciu Jana Pawła II

Author(s): Grzegorz Dziewulski / Language(s): Polish Issue: 2/2017

The issue of natural law is significant in moral theology and legislation. On one hand, it is theexpression and guarantee of the dignity of human person and its natural rights. On the other hand, theuniversality of knowing it with the help of rational mind and affirmation of human being in its whole integrityand finality, which is present in it, make it a crucial criterion for the regulation of civil rights anda common ground for cooperation of states and societies. The interpretation of this topic by John Paul IIstems from and refers to the teaching of Thomas Aquinas. However, due to phenomenological and ethicalcharacter of the papal thought and its teaching cultural context it has its own unique characteristics.It corrects erroneous interpretations, such as: ethical subjectivism, proportionalism, consequentialismor fundamental option theory. The papal understanding can be described in terms of personalism ofnatural law understanding, bringing out – in the spirit of papal body theology – the significance ofdynamisms of spiritual and body nature in the examination and application of natural law; he interpretsthe issues of morality in relation to nature, freedom and truth.

More...

Неосновано обогаћење

Author(s): Jelena Danilović / Language(s): Serbian Issue: 1-4/2001

This work deals with a segment from the wide variety of issues covered by the institute of legally unjust enrichment. The author of the text considers first the title of the institute, i.e. the terminology in our and foreign literature and legislation, and concludes that the ,,unjust enrichment‘‘ is the most appropriate term, which has also been used in our judicial practice. In the second part of the paper, the author analyzes the application of this institute, that is the question when a person deprived of a property can ask for the restitution of the same value. In the following chapter she gives the history of unjust enrichment, starting from the Roman law where we can first find actio de in rem verso ( legal action to recover the property unjustifiably taken away from the person entitled to it), to Gloss and Post-gloss , to different perceptions of this institute in the German, French and Italian legal history. A special contribution of Savigny to the analysis of the institute is particularly emphasized. Finally, a number of provisions are cited from our Code of Obligations and, instead of a conclusion, there is a brief review of the evolution of the philosophical and legal ideas and regulations regarding unjust enrichment, from the Roman law to the present days.

More...

Prigovor savjesti i pravnička profesija Kritički ogled o pravnoj (ne)kulturi

Author(s): Tomislav Nedić,Josip Berdica / Language(s): Croatian Issue: 01/153/2019

The paper deals with the critical questioning of the relation between legitimate imposed legal obligations and the rights to refuse these obligations based on the right of the freedom of conscience, i.e. conscientious objection. The critical perspective that is applied to conduct the questioning is a legal profession because, in Croatian legal culture, there is no articulated answer to the question of how to reconcile these two obligations within the legal profession. The paper draws on the comprehension of John Rawls’s theory of conscientious objection since it is a systematic analysis of justice that shall submit subjective understanding of the good (conscience) to the principle of right (legitimate imposed obligation). In practice, the focus is on the grounds for acknowledging conscientious objection among lawyers as well on the obstacles to exercising this right.

More...

Šejh Sadijevo poimanje pravde

Author(s): Elvir Musić / Language(s): Bosnian Issue: 16/2019

Since ancient times, man as a social being has searched for solutions that could lead to the formation of a just society, which would enable the realization of all the potentials that are hiding in every member of community. Given the strong influence of the Holy Book of God – Qur’an on Muslim societies in Persian, Arabic and Turkish speaking area, thinkers at that time strived to reach the correct comprehension of the Qur’anic principles among which justice occupies a special place and thus give their contribution to the formation of a just society. Among these great people a significant place occupies Shaikh Sa‘dī Shirazi (1210-1292) who gained worldwide fame not only by his lyrical gazels, but as an adviser to rulers as well. In his works – especially in Gulistan and Bustan – we find contours of a system of the establishing justice in society, which are presented in this paper.

More...

Godność człowieka jako podstawa sprawiedliwości

Author(s): Wojciech Dziedziak / Language(s): Polish Issue: 1/2019

The article discusses the issue of the fundamentals of justice. Despite the dominant narratives about the conventional nature of this category, it is claimed that the fundamental of justice is the inherent human dignity. Justice finds its his real and substantial foundation in the dignity of the human person. Therefore, the inherent (innate), non-transferable, inalienable dignity, which is associated with the essence of man, is the foundation of justice and its requirements requiring to “give to each what he deserves” (suum cuique tribuere), to give “to each his own” or his due, which means the natural human rights, the most rudimentary of which is the right to life and the right to personal development. The assertion of those basic human rights is not a matter of any convention, agreements, contracts or the will of the legislator, or any political games, but a matter of justice, natural justice.

More...

L’INDIVIDU, UN SUJET DE DROIT OU UN ANIMAL SYMBOLIQUE ? MALAISE DANS LE DROIT

Author(s): Jacques Amar / Language(s): French Issue: 1/2020

The individual, a subject of law or a symbolic animal? Discomfort in the law. How can it be explained that the text concerning the prohibition of religious signs in the public sphere in France can be justified in the name of human rights in France and condemned in the name of human rights at the United Nations? The present article attempts to explain this situation on the basis of the notion of dispute expounded by J. F. Lyotard; it tries to explain the new trends in contemporary law on the basis of the distinction between dispute and litigation.

More...

Аристотель и Харт о неопределенности права

Author(s): Vitaly Ogleznev / Language(s): Russian Issue: 1/2020

The article presents Aristotle’s and H. L. A. Hart’s approaches to indeterminacy of law. It is shown that both Hart and Aristotle have associated indeterminacy with the general nature of law and legal rules, but they interpret this relationship in different ways, as well as in different ways they interpret the reasons of general nature of law and indeterminacy. If for Aristotle the general nature of law is the cause of indeterminacy, then for Hart it is a consequence. But both philosophers definitely agree that for a more effective legal regulation, a margin of indeterminacy in legal rules should nevertheless be tolerated.

More...

Ликург – небесный покровитель Спарты

Author(s): Dmitri Panchenko / Language(s): Russian Issue: 2/2020

The ancient authors knew nothing certain about Spartan lawgiver Lycurgus save that he lost his eye (allegedly because of the opposition to his reforms). This small detail provides the best indication to the original character of Lycurgus. Greek, Indian, Iranian and other texts repeatedly mention the eye of a highest god, and there were Sumerian precedents for that. The idea of the eye of god was initially connected with the notion of the celestial pole and its symbolic representation. An important and characteristic function of the all-seeing Eye was to oversee justice and right order, just as ‘the eye of Zeus’ does in Hes. Op. 267. Spartan one-eyed Lycurgus was a god of that type. Conscious efforts of fifth century’s Spartan politicians who were able to influence contemporary poets and writers turned Lycurgus into a lawgiver of a kind of Athenian Solon.

More...

ІСНУВАННЯ НОРМ ПРАВА ЯК ПРОБЛЕМА В ДЕОНТИЧНІЙ ЛОГІЦІ

Author(s): Olena Mykolaivna Yurkevych / Language(s): Ukrainian Issue: 1/2020

Problem setting. The existence of the rule of law as a problem of deontic logic is defined in the plane of logical and ontological problems of law, its origin is connected with the Jorgensen dilemma. The study of legal norms as existing established their inconsistency with the ideal of rational science. The existence of contradictions and gaps in the law does not correspond to the principles of consistency and completeness. The study of existing legal norms requires the further development of deontic concepts, clarification of the criteria for the existence and logical significance of legal norms, the development of formalization, and so on.Recent research and publications analysis. The origin of deontic logic is associated with the name of Aristotle, later it was systematically investigated by G.V. F. Leibniz, I. Bentham, in the twentieth century it was finally formed. In the works of S. Mali, A. Hoffler, E. Menger, an axiomatic system for describing deontic concepts was created. The problem of the existence of legal norms in deontic logic was posed in the work “Deontic Logic” by G. von Wrigt and later investigated in the writings of K. Alchurron and E. V. Bulygin, who analyzed the completeness and consistency of the legal system, conflicts in legislation and “white spots” "in the right. They first created the formal theory of norms as a second-order logical theory. In Ukraine, research on deontic logic was carried out by A. E. Konversky, S. I. Maksimov, E. N. Yurkevych and others.Paper objective. The purpose of the study is to reveal the problem of the existence of rules of law in terms of the tasks of logical analytics, the level of development of logical tools in deontic logic, taking into account and deepening knowledge of the logic of practical thinking of lawyers.Paper main body. Modern deontic logic explores logical forms and the rules for their application in normative contexts. These contexts are sets of prescriptive and descriptive statements. The deontic concept connects the content of the utterance with a certain action under certain conditions. This creates the character of the norm. Systems of deontic logic are based on the traditional logic of utterances and the interdependence of deontic concepts (“forbidden”, “obligatory”, “allowed”). In deontic deduction, the conclusion is made by analogy with the action and is evaluated in terms of "justified" / "permissible", and not "true" / "false". The basic principles for the deontic system are the principles of deontic completeness and consistency. The existence of rules of law determines their strength and is associated with the establishment or termination of the regulatory relationship, which is the relationship between the authority and the subject of the norm. To consider the various aspects of normative relations, the concepts of different degrees of abstraction are taken: communication, utterance and proposition. The principle of consistency of the norm determines the possibility of its implementation, and hence the possibility of its existence. Conflicting rules issued by different authorities may exist ("conflict of will"). And the contradictory norms formulated by one instance mean the presence of irrational will. The introduction of the ontological criterion of rational / irrational will becomes crucial for the logic of practical thinking regarding the existence of legal norms. Conflicting norms in the same norms corpus cannot be simultaneously enforceable. In the formalization of deontic expressions, propositional norms are reduced to propositions about the existence of norms, provided that the norm is promulgated by a certain authority.Conclusions of the research. The development of the problem of the existence of rules of law in deontic logic has developed a logical methodology by deepening knowledge of ontological topics and logic of practical thinking, expanding the concept of the corpus of rules of law, rethinking the principles of consistency and completeness of the legal system, as well as the possibilities and symbolic instrumentalization, which logistical tools, symbolization of legal instance, clarification of logical meanings with respect to existing norms.

More...

МЕТОДОЛОГІЯ ЯК ОСОБЛИВА СФЕРА ПІЗНАННЯ, СИСТЕМА ЗНАНЬ ПРО МЕТОДИ, ФОРМИ І ЗАСОБИ МИСЛЕННЯ

Author(s): Nataliia Koval / Language(s): Ukrainian Issue: 2/2018

National general theoretical jurisprudence is experiencing a complex and contradictory period of its history. On the one hand, the collapse of totalitarianism and methodological monism in the study of law and other legal phenomena, provided ample opportunities for the renewal of domestic law science, overcoming its long isolation from the European and world culture and legal theory. On the other hand, the transition from methodological monism to worldview methodological pluralism has led to complication of the process of perception of legal phenomena, one of the consequences of which was the eclectic combination of heterogeneous worldview principles and ideas from Marxist to neoliberal, which are badly interconnected. This creates inconsistencies of contradiction, which often do not meet the basic requirements for scientific theories. Before starting to studying, it is advisable in scientific research to decide on methodological platforms, which enable to effectively implement them, reflect its results with the adequately current conditions, and indicate the ways of their implementation in practice. The complexity lies, in fact, in the urgent need to develop completely new concepts of activity. Science, which should be formed on sound, theoretical and methodological basis, should play an important role in the development of such concepts.

More...

LEGAL ASPECT OF THE INFLUENCE ON FORMING OPTIMAL PHILOSOPHICAL PARADIGM

Author(s): Yurii Paida / Language(s): English Issue: 1/2019

The article deals with the analysis of various aspects of the mutual influence of culture and religion, because reinterpretation of religion values, a meaningful, semantic element of religion is necessary and has evident practical dimension that affects forming of the optimal cultural paradigm.

More...

Promises to Unidentified Individuals

Author(s): Szymon Osmola / Language(s): English Issue: 65/2018

Is it possible to make a binding promise to an unidentified individual, i.e. an individual whose identity is unknown to a promisor? The answer to that question seems to be negative, regardless of the philosophical theory of promises one decides to adopt. The particular autonomy theory considers promises as one of the tools for enhancing morally valuable relationships through recognizing another party’s particular personality, which enables individuals to live a better life. The generic autonomy theory considers promises as a tool facilitating cooperation between strangers, which enables them to create some kind of shared end. The utilitarian theory considers the practice of promising as a tool of increasing social welfare. The premises of each of these theories seem to rule out the possibility of promises to unidentified individuals. Accordingly, reflections on that topic may some shed light on some problems related to the issue of the identifiability effect, widely discussed in psychological literature.

More...

Truisms, Heuristics and the Concept of Law

Author(s): Adam Dyrda / Language(s): English Issue: 65/2018

Analyses of the concept of law rely on certain self-evident truths: truisms (platitudes) about law that people generally share and which reflect their common understanding of this important social concept. General legal theories are products of such analyses. In this paper I argue that every reference to truisms in the context of legal theory building should also take into account inferential processes by which truisms themselves are coined, namely different types of heuristics about law and related phenomena. Since both truisms and heuristics are unstructured, often inconsistent, and even fallible, conceptual analyses are the main means of transforming such “raw” evidence into rationally structured legal theories.

More...

ПРОФІЛАКТИЧНА ДІЯЛЬНІСТЬ НАЦІОНАЛЬНОЇ ПОЛІЦІЇ УКРАЇНИ: СПРОБА ФІЛОСОФСЬКО-ПРАВОВОЇ РЕФЛЕКСІЇ

Author(s): Volodymyr Trofimenko,Yana Radchenko / Language(s): Ukrainian Issue: 3/2020

The actual value of the topic. The present emerges through the prism of the past, transforms reality, creates the ray of the future. Once upon a time, Ukraine has chosen its vector of democratic and socio-legal development - the European path. And from that moment, the orientation-legal activity changed, new conditions of existence emerged, which, in turn, led to the emergence of unknown threats to the country. For the prevention,timely detection and elimination of such threats, the state is trying to improve comprehensively the legislation and eliminate the existing gaps and conflicts in it. The National Police is considered to be an instrument for ensuring the protection of human rights and freedoms, the interests of society and the state, counteracting crime, maintaining public security and order in the country. Moreover, after reforming the system of the Ministry of Internal Affairs, it was announced that the focus of their activities was on the prevention of offenses, identification of the causes and conditions that contributed to their commission, taking measures to eliminate them, that confirms the relevance of the investigated topic.The status of recent research and publications. The publications on the topic of preventive measures of law enforcement agencies in the Ukrainian scientific community can be divided into two directions. The first area is devoted to general issues of prevention. It is developed by Klyuev O. M., Lesko N. V., Shkola S. M., Felik V. The aim of the second direction is the scientific elaboration of applied issues of prevention. Komarnitskaya 1.1., Kornienko M. I., Melnyk V. I., Soha S. I., Shestakov S. V., Babakin V. M., Blaga A. B., Bugaychuk K. L., Zhuravel T. V., Zabroda D. G., Josipiv A. A. work in this direction.The main aim of this publication is an attempt of philosophical-legal understanding of the need for preventive measures by the National Police, who are the most valuable link in the system of police authority. The aim is also to systematize the types, functions and principles, to clearly outline directions and features, to set a goal and to provide appropriate recommendations for improving the preventive measures of the National Police.The outline of the main material. In the main part of the publication are analyzed the preventive measures of the National Police of Ukraine. It is shown a variety of approaches to understanding the category of «prevention» from the viewpoint of different legal sciences. The classification of types of prevention is given and from this point of view the existing laws and bills are analyzed. The authors refer to the basic methods of preventive measures. They emphasize the method of coercion as the most effective for modern Ukraine. Special attention is drawn to preventive measures among the juveniles.Conclusions. At the present stage of legislative development of society, preventive measures of the National Police should be the most important direction of activity of state- governmental structures. It is considered in the hypostasis of preventive measures, which is based on the application of methods of observation and data processing, their systematization in order to prevent the commission of an offense at the stage of its planning and preparation. The philosophical-legal analysis conducted in this article confirms that the preventive measures of the National Police provide a process of discrediting criminal behavior, voluntarily abandoning criminal motivation and intent, or continuing the illegal activity of certain groups and individuals who bear criminal intentions and have a positive attitude to illegal way of life. The essence of prevention is to develop a sense of responsibility for behavior, which promotes a deep awareness not only of rights but also of obligations.

More...

Sovereign Agents of Mythical and (Pseudo-)Divine Violence. Walter Benjamin and Global Biopolitical Cinema

Author(s): Seung-hoon Jeong / Language(s): English Issue: 2/2020

Drawing on Walter Benjamin’s “Critique of Violence,” this paper illuminates the complexity of law and violence in global biopolitical cinema. Benjamin’s key notions (“lawmaking” and “law-preserving,” “mythical” and “divine” violence) are revisited through diverse films such as the Dark Knight series, Dogville, The Act of Killing, and Waltz with Bashir. The paper explores how the sovereign agents of killing here embody ‘pseudo-divine violence,’ posing ethical dilemmas about justice and life’s value. This analysis leads to the quest for ‘true divine violence without sovereign power and the sanctity of humanity believed only as the potential to retain and relay.

More...

О СУЩНОСТИ И ГЕНЕЗИСЕ ПРАВОВОГО НИГИЛИЗМА И ВОЗМОЖНОСТЯХ ЕГО ПРЕОДОЛЕНИЯ

Author(s): Tetiana Mikolaivna Dyshkant / Language(s): Russian Issue: 1/2021

Problem setting. When the defining word «legal» is added to the concept of «nihilism», new meanings arise, which requires checking how correctly this phrase is used in legal sciences. To preserve statehood, it is important to understand the essence and genesis of legal nihilism.Recent research and publications analysis. Despite the presence of attention to this important problem, both in the domestic and foreign literature devoted to the problems of law, there is still enough uncertainty in understanding the essence and causes of legal nihilism, which requires clarification and correction.Paper objective. It is necessary to clarify the meaning of the concept of «legal nihilism» by comparing this phenomenon with various forms of manifestation and thereby concretize its essence and origins. This will allow, in turn, determining the possibilities of overcoming it.Paper main body. The article actualizes the problem of the conceptual apparatus of legal sciences, which is associated with the vagueness and ambiguity of some concepts, including the concepts of «natural law» and «law». Ambiguity of the concept of law both as a goal and as a tool can become a source of legal conflicts. By clarifying this concept, it is possible to come to a deeper understanding of the concept of «legal nihilism», which is important for the field of law. The analysis of types of legal nihilism leads to the conclusion that it is necessary to distinguish between natural law and law, recognizing the primary role of human rights and the instrumental role of law.Two non-mutually exclusive opportunities to avoid nihilism associated with the education of citizens of legal consciousness are considered. The first is related to the education of respect for universal human values and their acceptance. Submission to the moral law, in theory, should prevent the violation of legal boundaries in the action of the subject. In the second case, this is a pragmatic way of bringing to the attention of citizens information about the inevitability of punishment. As a result, the conviction is formed that it is more profitable to comply with laws than not to comply, especially since being in the legal field ensures stability and security.The presence of prerequisites for the effective implementation of these opportunities in the modern world is analyzed. At the same time, modern realities were taken into account, for example, such as the processes of globalization and the factor of postmodernism.Conclusions of the research. The reason for legal nihilism is violations in the development and application of legislative acts associated with a complex crisis affecting the social, economic, political and legal spheres. All calls for the education of legal consciousness will be declarative in nature without eliminating the objective reasons leading to its distortion.

More...

The Nature and Potential Applications of Contextual Definition in Philosophy of Law

Author(s): Vitaly Ogleznev / Language(s): English Issue: 1/2021

The paper analyses the nature and potential applications of contextual definitions in modern philosophy of language and jurisprudence. It is shown that the distinction between a contextual definition and a genus–differentia definition proposed by some legal philosophers, where the latter is considered ineffective and unproductive in analyzing legal concepts, is sometimes deceptive. The weaknesses of the argument about this distinction are shown by examining the constitutional legal rules, which can be considered an example of the application of contextual definitions in legal science. On the basis of this claim, it is shown that these two types of definition may well coexist at least in legal language and in some sense complement each other when different areas of their applicability are taken into account.

More...

Thoughts on the Notion of Justice

Author(s): Wojciech Dziedziak / Language(s): English Issue: 2/2021

The article has addressed the problem of understanding justice. The traditional formula “to render to everyone his own” (suum cuique tribuere) was taken as the point of departure. The discussion leads to the conclusion that natural justice applies to every person, and that every person is entitled to natural, innate, fundamental human rights. The traditional formula with regard to law should be understood as a principle-norm, a principle of law that imposes an obligation to render to everyone what is due. It is the duty of authorities (which manage the social life) to implement this obligation. The innate natural rights enshrined and safeguarded in positive law will be combined with the statutory, precise, strengthened norms of this law, and thus enhanced (since it is a natural obligation, a moral and legal obligation, of the human being not to violate these natural rights) with the prohibition of violating them by others.

More...

Utopia Without the Law – Why Is It Impossible?

Author(s): Karol Kuźmicz / Language(s): English Issue: 2/2021

The academic character of the article is connected with the attempt to answer the question asked in the title: Utopia without the law – is it possible? The theoretical arguments provided by the author lead to an affirmative answer to this question and allow for formulating the following thesis: there is no utopia without the law. The law is not only present in utopias, both positive and negative ones (anti-utopias and dystopias) but also, to a great extent, determines their existence and functioning. As a result, it links utopian thinking to reality. Any answer to this question is possible and justifiable in the academic discourse. According to the author of this article not only the law is present in the utopia but the law in the utopia must exist. The essence of the law in utopias is justice, but there is not justice in utopias without wisdom. The Bible, Roman law and philosophical and legal reflection were the sources of an approach to law for the creators of utopia. Referring to the views of such thinkers as: Plato, Immanuel Kant, Rudolf von Ihering, Gustav Radbruch, Karl R. Popper, Bronisław Baczko, the author states that the law is an integral part of both worlds: the utopian world and real world. So, there is not utopia without the law as an idea of jusctice, implemented into the social life of the people who are intelligent beings.

More...