Problematika legitimnog i zbiljskog važenja normi u teoriji Jürgena Habermasa

Author(s): Mensur Kustura,Lana Šabani / Language(s): Bosnian Issue: 01+02/2013

The text titled Problemacy of legitimate and actual validity of the norms in Jürgen Habermas theory deals with the question of how the complex problems of relations of deliberative democracy and procedural manners of adoption and realization of norms are discussed in the frameworks of normative legitimacy. Jürgen Habermas discusses this problemacy by referring to the functional relationship between the control of political power and the aspects of institutional legitimacy. Results of the reconstruction of the discursive argumentation while discussing the problemacy of adoption and realization of norms will be included in two aspects, primarily through an attempt to develop a critical evaluation of the (re)production of norms through the paradigm of discursive communication. Then, the functional and explicative frames of the origin and seizure of normative legitimacy that originates as the consensus for common interest will be correlated with the institutional structure of political subsystem of modern society.

The Time of the (Trap)door

Author(s): David Wills / Language(s): English Issue: 08/2015

This discussion forms part of an analysis of the “temporal technology” of the death penalty, that is to say, what happens to human time once the temporality of mortality is interrupted “artificially” by a machine in the service of a state. In U.S. Supreme Court decisions have been reached that come down to a question of how to manage the instant of death so as not to have it constitute “cruel and unusual punishment”. On that basis I analyze images of cruelty as represented by Justice Clarence Thomas in the case of Glossip v. Gross (2015), by Puritan preachers in execution sermons, and by the Islamic State in contemporaneous examples, and interpret them through the lens of the trapdoor as technological innovation that, like the guillotine, tries to refine the instant of death, and introduces at the same time a type of“photographic” instant. Woven into that analysis is a reading of Kafka’s “Metamorphosis”, and in particular of the door that separates his roomfrom the space of his family and the outside world.

Правото и Свещеното или Мярката на Справедливостта

Author(s): Ivan Biliarsky / Language(s): Bulgarian Issue: 20/2014

The article studies the relation between the law and the sacred in Christian culture. Christianity, unlike Islam or Israelite religion, does not impose on the state and the society a law that derives from the Revelation. The law in Christian countries is not a direct result of God’s will; it is a human creation with all its imperfections. This affirmation does not mean, however, that Christian law is not founded on the values of faith. On the contrary, exactly faith establishes the moral basis of the legal norm, because the ultimate measure of Justice is the Word of God. These observations were provoked by the speech of Pope Benedict XVI at the Bundestag of the Federal Republic of Germany (September 22, 2011).

Libertarians and Liberal Welfarists' Conception of Distributive Justice

Author(s): Daniel Aigbona / Language(s): English Issue: 1/2012

In this paper I argue for the position that the cannons of distributive justice as proposed by the Liberal Welfarists and Libertarians are structurally deficient in that they suggest a false dichotomy between two ways of ensuring the justice of the distributive system leading to a greater exercise of the freedom of the people. Liberty and Equality are not necessarily mutually exclusive nor are they individually exhaustive and sufficient. Authentic freedom is ultimately a combination of the values and essential element of liberty and equality.

Pravo prigovora savjesti

Author(s): Dragan Vukadin / Language(s): Croatian Issue: 02/2003

The Right to conscientious objection is very complex legal and ethic issue and for its more completely understanding it is necessary to take an analytic approach. In this sense, conscientious objection (or rejection because of conscience) representing legal-philosophic entirety and phenomenon is particularly analysed in presentation not only through its differentiation from other similar phenomena or similar kinds of acts (civil disobedience, for example) but mainly through its legal and ethic dimension. In this work it is our view that conscientious objection represents, primun omnium, a form of disobedience (resistance offering) of an individuum to state existing law norms (legal order) and/or to political acts of state government, if he/she takes it for moral inadmissible, because of nonspecific nature of these norms/political acts or inapplicability of norms (in moral aspect) in certain cases. To such a degree right to conscientious objection is moral human right. In distinction from civil disobedience, conscientious objection consists of the following characteristics. At first, protestant (objector) does not want to appeal by his objection to the majority social feeling for certain values. Further, in principles, protestant's objection is not public and that protestant's objection must be based mainly on his different philosophic, religious and other belief, at last. Although conscientious objection is in the sphere of law denoted as progressive achievement, even so it is, by one's own legal nature, an act contra legem because it is in opposition of legal order. Finally, one should emphasize that legally admitted conscientious objection must be, in whole or at least, partially enforced and that it must be based on protestant's moral credibility, i. e. on the protestant's belief that by his objecting he protects the highest values which make human dignity.

Suverenitet i Bosna i Hercegovina: postmoderna paradigma

Author(s): Pavle Mijović / Language(s): Croatian Issue: 1/2016

The paper entitled “Bosnia and Herzegovina and Sovereignity: Postmodern Paradigm?” defines as its goal to question the term sovereignty as it has been profiled in Modern philosophic and political thought that in fact exists today. Reviewing the various sovereignty concepts aims at pointing how it can be perceived as a boundary term containing a unique incompleteness of international orders. The paper‟s second part is going to provide an analysis of the sovereignty concepts found at several contemporary authors (Carl Schmitt and Giorgio Agamben). After formulating the aforestated theoretical framework, the third part observes the BH sovereignty. That segment of paper will try to resolve a question boiling to the one whether is possible to speak about BH sovereignty, taking into regard constitutional and other constraints, through the lenses of a new paradigm of sovereignty. Due to atypical constitutional organization, it is dire need to fortify theoretically the present sovereignty that de iure and de facto does exist through contemporary viewing of sovereignty, not through bygone categories that are antiquated in present social order. This paper attempts to present a possible postmodern theoretical framework for rethinking sovereignty in the specific locus – the one in Bosnia and Herzegovina.

H. Cohens Ethik und ihre Rezeption in der russischen Philosophie des Rechts

Author(s): Vladimir Belov / Language(s): German Issue: XXVII/2015

The article draws attention to one remarkable feature in the perception of the Hermann Cohen doctrine in Russia, namely special attention on the part of Russian philosophers of the twentieth century to the turn of the ethical theories of the founder of the Marburg school of neo-Kantianism. In Russia, the most representative approach to the analysis of Cohen’s ethical theories is one conducted from the perspective of the philosophy of law. Ethical theories of the Marburg philosopher were in the center of scientific debate of the most famous Russian theorists of law – P.I. Novgorodtsev, B.A. Kistyakovsky, E.V. Spektorsky. The appeal rights of Russian theorists to analyze ethical problems Cohen highlighted the relation of law and morality. The central theme of the arguments in this respect was the theme of ethics orientation of the Marburg philosopher on jurisprudence. Of particular importance in view of the historicist and positivist tendencies that prevailed at the end of the 19th century in legal science in Russia, was rehabilitation of Cohen’s and his followers’ the concept of “natural law”. The main drawback of the criticism coming from Russian theorists of law in relation to Cohen is that their approach to the ideas of this great German thinker is not systematic enough, attempting to consider their ethical views independently from other parts of their philosophical constructions.

Zasady prawa Po Drugiej Stronie Lustra

Author(s): / Language(s): Polish Issue: 4/2015

Jurisprudence as phronetic experience: formulation of the problem

Author(s): N. I. Satokhina / Language(s): Ukrainian Issue: 133/2016

The article is devoted to reactualization of Aristotelian idea of phronesis (practical wisdom as the capacity of situational judgment) in the framework of hermeneutical philosophy (M. Heidegger, G.-G. Gadamer, P. Ricoeur, F.-J. Mootz III, J. Tontti) and critical direction «phronetic social sciences» (B. Flyvbjerg) in order to clarify the nature of jurisprudence. Instead of the usual concepts of «theory», «science», «knowledge», – the author proposes to use the concept of experience, in particular legal experience to describe the jurisprudence. Last is thought of as an holistic human experience, which covers both interpretation of law (theory), reproduction of law (poezis) and its application (praxis) and can not be reduced neither to science nor to technology.

Неолібералізм у європейській та англо-американській традиціях

Author(s): H. M. Kuts / Language(s): Ukrainian Issue: 133/2016

The article analyzes the specifics of the conceptualization of neoliberalism in the European and Anglo-American traditions. Neoliberalism, which emerged along with Keynesianism, offered its own vision of the problems of government regulation. The most significant areas of neoliberal discourse were developed in Austria (Vienna School: L. Mises, F. Hayek and others.), Germany (Freiburg School: W. Eucken, L. Erhard et al.), the UK (London School: Е. Kennan, L. Robbins et al.), the USA (Chicago School or «monetarism» F. Knight, G. Stigler, М. Friedman et al.).It is noted that quite deep fundamental differences can be found between German and Anglo-American neoliberal schools. For the German neoliberal direction a number of social issues which solutions had to be constantly in sight of public institutions became important enough. While the Anglo-American neoliberal schools focused their attention on purely economic entity, they were not interested in framework that would outline the entity’s behavior.Today the most acute problem in neoliberalism is that neoliberals are seriously suspicious relating to democracy, they are ready rather to give power to experts and elite of the society than accept the principle of rule by majority that democracy provides.

Философские основания регионального развития опорных университетов

Author(s): Rimma Gennadievna Buyankina,Ruslan Aleksandrovich Zukov,Nikolay Alekseevich Knyazev / Language(s): Russian Issue: 5/2016

The article presents the analysis of socio-economic and political factors determining countries’ competitiveness in the modern postindustrial world. The authors emphasize that countries’ successful development depends on scientific-technical and innovation policy imple-mented by their governments, which should be based on understanding the unity and deep in-teractions between the laws of nature and laws of socio-economic life by means of technological progress and the needs of human development. The principal novelty of this unity is that it is considered in the article as the subject of investigating the specific type of modern interdisciplinary interactions, as a manifestation of the new type of rationality, as a radical change in the relationship between government, society and business.Innovation policy in Russia (within the mentioned tasks) is implemented at two levels: the Federal and regional ones. At the Federal level, the problems are solved according to the na-tional policy of country’s socio-economic development. At the same time the powers aimed at performing the above-mentioned tasks are transferred to the regions in terms of their relatively independent socio-economic competencies and efficient innovative activities taking into account peculiarities of particular regions in the fields of science, education, economic and industrial resources. Fulfilling new complex socio-economic demands is inextricably linked with the activi-ties of flagship universities. The flagship university is a new educational component in the sys-tem of interaction between government, science and industry. Recent developments have height-ened the need for investigating basic functional characteristics of flagship universities, however, the problem has not received proper coverage in research publications.The purpose of this article is to provide a conceptual theoretical analyses of the functioning of flagship universities, and to identify the key approaches to integration and interaction be-tween science, education, industry and socio-economic life of the region.The article considers the characteristics of socio-economic developments in post-industrial countries and the principles of cooperation between government, education, science and production. The author reveals favorable conditions for achieving innovative outcomes in the organization of the education system and science aimed at strengthening the competitive ca-pacity of the country. Special attention is paid to the difficulties of modernization in Russia, which can be overcome only by creating a fundamentally new system of education conforming to integrative directions in interaction between government, science and economy.In conclusion, the authors formulate functional characteristics within innovative activities of flagship universities and specific directions of their integration.

(META)ETYKA A FILOZOFIA PRAWA

Author(s): Monika Zalewska / Language(s): Polish Issue: 26/2014

In this paper I have focused on methodological problems of ethics and legal philosophy. My main goal was to determine relation between meta-ethics and legal philosophy. In the first part I tried to describe historical context, how jurisprudence become independent form ethics. Then in second part I examined relations between main disciplines of ethics and legal philosophy pointing out that although there are some similarities, there is even more differences. Finally in the third part I explored relation between meta-ethics and legal philosophy. My conclusion was that the problems of meta-ethics also exists in legal philosophy but the level of significance is lower. The reason for it lays in the specific character of legal norms which existence depends on the will of competent authority in contrast to moral norms which need other, meta-ethical justification.

AUTONOMIA FILOZOFII PRAWA WZGLĘDEM METAFIZYKI W UJĘCIU W. SOŁOWJOWA — ZARYS PROBLEMATYKI

Author(s): Marek Jakubiec / Language(s): Polish Issue: 28/2015

In the present paper two issues are enunciated. The first part consists brief analysis of Soloviov’ s metaphysics. In the second one, main aspects of Russian philosopher’s legal theory and the relation between his metaphysical and legal conceptions are presented. The aim is to indicate originality of Soloviov’ s thought, especially in the context of the paradigm which ruled in Russia in 19th century.

Różne wymiary odpowiedzialności prawnej

Author(s): Monika Zalewska / Language(s): Polish Issue: 77/2016

The legal liability is the issue of vast complexity and hence worth to analyze both on theoretical and practical level. The main goal is to analyze of one of the understandings of legal responsibility, imputation, proposed by Hans Kelsen. Therefore, first the concept of imputation will be described. Secondly, the mechanism will be revealed, which transforms imputation into legal responsibility. The conclusion includes the notion of incompleteness of Pure Theory of Law in application of law field.

The Thomistic perception of the person and human rights

Author(s): Eleni Procopiou / Language(s): English Issue: 1/2017

The idea of human rights is connected to the modern perception of law founded on subjectivity, in the context of which rights are authorizations of individual action versus a higher authority, resulting in a subjectivity of law. The huge importance of the thomistic perception of the person is connected with the issue of relations between the individual and society, as well as relations between law and state, since Thomas Aquinas foresaw what we call ‘rights of man’. Thus, the person, in a metaphysical context, is associated with natural order, since natural sociability forms the basis of a person’s supernatural fulfillment. Because of his social nature, the person is also a carrier of social relations and a product of his own encounter with other persons. In this way, Thomas Aquinas makes a synthesis of man per se, as part of mankind, and man as a person vis-à-vis others in the sphere of justice, consisting ‘in rendering to each one his right’. Ius is a relation of justice concerning what is right (iustum) from the point of view of the other, “to whom something is due.” Aquinas can be considered a forerunner of human rights of the modern era, as demonstrated by the issue of natural equity, the issue of unjust law and obedience and the issue of political legitimization. In this framework, “human” or “natural” rights are considered moral rights. However, in the sphere of law they are perceived only within the community and common good, by no means constituting exclusive and absolute rights but only rights corresponding with duties and obligations. The Thomistic approach expresses both the free side of man vis-à-vis the state and its structures (in the spiritual level) and the egalitarian demand of law within social relations. Furthermore, it places the sphere of law on the background of common good and common interest. The Thomistic approach of the human person is a response to the modern perception of legal subjectivity and the priority of individuals, associated with the ideology of rights and leading to a confrontation of individual and society and a division of man to natural man and citizen, a product of the antithesis between society and state.

O wybranych problemach ze stosowaniem materialnego prawa dyscyplinarnego adwokatów z perspektywy gwarancji obwinionego do rzetelnego postępowania

Author(s): Łukasz Chojniak / Language(s): Polish Issue: 1/2017

The text is dedicated to the analysis of the function and normative status of ethical and deontological principles concerning advocates professions. It presents the normative status of the advocates ethical code and its relationships with existing law regulation. It also includes some remarks on fine penalty and the issue of guilt in disciplinary proceedings.

Konkretyzacja norm praw człowieka. Propozycje możliwych kierunków rozwiązań

Author(s): Anna Młynarska-Sobaczewska / Language(s): Polish Issue: 61-62/2015

In this article, the author discusses the irreducibility of the norms of human rights to the rules of logic and to a syllogistic model for the application of law. She discusses the proposal of applying hermeneutical method to the process of adjudication, which could lead to a correspondence between the meanings of legal facts and norms.

Precedens sądowy w świetle ewolucji brytyjskiego pozytywizmu prawniczego

Author(s): Mariusz Jerzy Golecki / Language(s): Polish Issue: 61-62/2015

This paper concerns the relationship between the development of the doctrine of binding precedent in English jurisprudence and the evolution of British legal positivism, with particular focus on the development of judicial practice and the search for the ultimate criteria of validity. Based on examples from English judicial practice, the article explores the dilemmas of imperative legal theory. The proposed hypothesis is based on the assumption that the evolution of the doctrine of binding precedent in English law became an essential factor behind refined legal positivism in general and the concept of the rule of recognition in particular.

Prawo pozytywne - faktyczność i obowiązywanie - przemoc i przymus

Author(s): Tomasz Bekrycht / Language(s): Polish Issue: 61-62/2015

This article focuses on the conceptual analysis of law and morality from the perspective of their relationship with the concepts of violence and coercion. The author conducts a phenomenological analysis of the concepts of law and morality, pointing out their ambiguity and the difficulties with defining their mutual relations. This analysis leads to the conclusion that three phenomena (law, morality and positive law) must be taken into consideration for those relations to be correctly defined. This allows the content of positive law to be shielded against dogmatism and ideologies. The author also challenges the thesis of a special role of morality in social relationships and strongly emphasises the crucial, primary role of positive law in those relations.

Rawls’s Theory of Justice and Affirmative Action in Science

Author(s): Seungbae Park / Language(s): English Issue: 3/2024

Rival applied ethicists have constructed arguments for and against affirmative action independently of Rawls’s theory of justice. Those arguments do not resolve the dispute about affirmative action. I reformulate them with the use of Rawls’s theory of justice and conclude that the reformulated arguments do not resolve the dispute about affirmative action either. Therefore, Rawls’s theory of justice is not useful in resolving the dispute about affirmative action. This point applies to affirmative action in science, contrary to what some writers suggest.